Local 707, Motor Freights Drivers

National Labor Relations Board - Board Decisions

Apr 26, 1972

196 N.L.R.B. 613 (N.L.R.B. 1972)

LOCAL 707, MOTOR FREIGHT DRIVERS 613
Local Union No. 707, Highway and Local Motor
Freight Drivers, Dockmen and Helpers, Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America and Claremont
Polychemical Corporation
Claremont Polychemical Corporation and Local Union
No. 707, Highway and Local Motor Freight Drivers,
Dockmen, and Helpers, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Cases 29-CP-137, 29-CA-
1844, and 29-CA-1992
April 26, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
KENNEDY
On December 24, 1970, Trial Examiner Sidney D.
Goldberg issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel, the Re-
spondent Company, and the Respondent Union filed
exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order.
Our colleague would find that the record in this
case will support a finding that the Respondent
Company's conduct was such that a fair election
could not be held and that, therefore, under the stan-
dards set forth in Gissel Packing,'a bargaining order
is the appropriate remedy. He would do so by finding
(1) that the two violations of Section 8(a)(1) of the Act
found by the Trial Examiner, which the latter found
to be "minor" in nature, constitute serious invasions
of the employees' rights and (2) that two bulletins
distributed by the Respondent Company to its em-
ployees, which the Trial Examiner did not find viola-
tive of the Act, did in fact interfere with the protected
rights of the employees and therefore were in viola-
tion of Section 8(a)(1).
The first of the incidents found to be violative of the
Act by the Trial Examiner consisted of a private con-
versation between the Respondent Company's presi-
dent, Marlowe, and an employee, Brown. This
interview included remarks about the establishment
of a grievance committee, of which Brown was to be
N.L.R.B. v. Gissel Packing Company, Inc., 395 U.S. 575
a member; a remark about the effect of unionization
on Marlowe's personal finances; and a threat that if
the Union came in the Respondent Company would
have to close its doors, a threat which Brown repeated
to four of his fellow employees. The second incident
found violative of the Act by the Trial Examiner, and
relied on by our colleague, consisted of a conversation
between Marlowe and another employee, Moss, in
which Marlowe told Moss that if an expected rise in
sales occurred Moss would become a foreman and
that if the Union came in it would cost the Respon-
dent Company $27 per man in benefits, and that this
would bankrupt the Company.
We agree with our colleague and the Trial Examin-
er that Marlowe overstepped the permissible bounds
of free speech in making his predictions and promises
of benefits and that the Respondent Company there-
fore violated Section 8(a)(1) of the Act. But in assess-
ing the impact of unfair labor practices on the Board's
election procedures they must by considered in their
context and evaluated with respect to the seriousness
of the interference. Thus the threats made to employ-
ee Brown, the more serious of the violations, evoked
laughter from the other employees to whom Brown
related the conversation. And while we do not con-
done Marlowe's remarks to Moss that he would be
promoted, contingent upon a rise in sales in his de-
partment, or his prediction that the Company would
go bankrupt if it had to grant benefits demanded by
the Union, we cannot find that these violations were
so serious in nature that a free and fair election could
not have been held 5 months thereafter, the earliest
that an election could be held under the statute. And
considering the fact that an election had been held 7
months before without interference by the Respon-
dent Company, we cannot agree that such conduct
would likely be repeated.
Our colleague would also find, which the Trial Ex-
aminer did not, that two bulletins distributed by the
Respondent Company on October 10, 1969 , to its em-
ployees constituted violations of Section 8(a)(1) of the
Act. The first of these bulletins advised the employees
that the Respondent Union could not petition for an
election until 1 year after the last election in March
1969; the Respondent Company would not recognize
the Union on the basis of authorization cards; signing
a union card did not obligate the signer to vote for the
Union in an election; it would do everything it could
to keep the Union out; and the employees would be
receiving "our proposals very soon"; and urged the
employees to vote against the Union on election day.
We find nothing in this bulletin which represents
anything more than the permissible exercise of free
speech by an employer in opposing unionization. In
stating that the Union could not petition for another
election until a year had passed after the previous
196 NLRB No. 75
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election it was merely stating the law. In stating that
it would insist upon an election before recognizing the
Union the Respondent Company was not committing
an anticipatory refusal to bargain, as contended by
our colleague, but was merely insisting on its right
under the statue to test the Union's asserted majority
by a Board election,2 a right here of particular signifi-
cance to the Respondent Company in this case be-
cause of the employees' rejection of unionization by
a substantial majority in a Board election less than 7
months before. And certainly the Respondent had the
right to inform its employees that it would oppose
unionization, and that the signing of the authorization
cards did not obligate them to vote for the Union at
an election, and to urge the employees to vote against
the Union at an election.
There remains for consideration the statement in
the first bulletin that "we will be giving you our pro-
posals very soon." Our colleague would find that this
statement conveys an implicit promise of benefits to
be received by the employees for rejection of unioni-
zation. We find nothing in this statement which would
influence an employee in his union adherence. Like
the Trial Examiner, we find the statement too vague
to justify a finding that it interfered with the rights of
the employees.
Our colleague would also find, however, that the
second bulletin 3 distributed by the Respondent Com-
pany supplies the specificity lacking in the first bulle-
tin regarding the "proposals." The second bulletin
had its genesis in a meeting held about April 30, 1969,
over 5 months before, at the request of the employees.
At that meeting some of the employees expressed a
desire to withdraw from the profit-sharing plan. Im-
mediately thereafter the Respondent Company re-
quested legal counsel to investigate ways of amending
the plan so that those who wished to do so might
withdraw. Frequent discussions were held with the
law firm, and the Respondent Company was told by
its counsel that it was necessary that it find out how
many of the employees intended to withdraw and how
s Linden Lumber Division, Summer & Co, 190 NLRB No. 116.
3 The text of the second bulletin read:
During our last company meeting , some people expressed a desire to
withdraw from our profit sharing plan.
We have been working with our lawyers and the Internal Revenue
Service to amend the plan so as to allow these people to do so. At this
time it is necessary for us to advise the Internal Revenue how many
people wish to leave the plan.
We would appreciate it if you would fill out the bottom of this form,
advising us of your intention, so that we can proceed with the
amendment . Please return it to Martin Wiesenfeld, Personnel Office.
We would like to impress upon you that this indication of intention is
not binding , and that you may change your mind either way, when the
time comes to make your final decision.
NAME DATE
[ ] I intend to withdraw from the profit sharing plan when the plan is
amended to allow withdrawal.
[ ]I intend to remain a participant of the profit sharing plan.
This declaration of intention is not binding.
many -intended to remain in the plan in order to sat-
isfy certain requirements of the Internal Revenue
Service.
The second bulletin was therefore nothing more
than inquiry to determine the intentions of the em-
ployees regarding the implementation of a matter
which had arisen over 5 months before. As the text
indicates, no promises of benefits were made to the
employees, express or implied. We are therefore un-
able to agree that this bulletin, whether viewed as a
part of the first bulletin or standing alone, could have
interfered with the rights of the employees under the
Act.
In summary, we find that while the Trial Examiner
was correct in finding that the two incidents involving
promises of benefits and threats of plant closure were
violative of Section 8(a)(1) of the Act they were not
serious when examined in their context. And we can-
not agree that the two bulletins distributed by the
Respondent Company invaded the statutory rights of
the employees. We are therefore of the opinion that
the unfair labor practices committed by the Respon-
dent Company were not of a caliber which would
preclude the holding of a free election and that there
is no justification for the issuance of a bargaining
order under the guidelines set forth by the Supreme
Court in the Gissel case.4
Our dissenting colleague also contends that by our
refusal to reinstate picketing employees we are ignor-
ing the provisions of Section 13, which preserves the
right to strike. We would first note that our action
herein is not directed at the strike engaged in by these
employees. On the contrary, we have, in approving
the Trial Examiner's Decision, found the refusal to
reinstate with backpay two employees, Weaver and
Russell, who struck, but did not picket, violative of
the Act. It is the resort to picketing for recognition
within 1 year of the holding of a valid election, an
activity specifically interdicted by Section 8(b)(7)(B)
of the statute, upon which we ground our action. In
a careful analysis of the cases arising both before and
after the passage of the Taft-Hartley Act, the Trial
Examiner has, in our opinion, clearly demonstrated
that where the activity engaged in by the employee is
the participation in an activity which contravenes the
policies of the Act the employee has forfeited his right
to invoke other provisions of the same statute to re-
store him to his job with backpay. We agree with the
Trial Examiner's analysis and his conclusion and
since the picketing herein was contrary to the express
provisions of Section 8(b)(7)(B) of the Act we have
concluded that the employees participating in the
picketing are not entitled to reinstatement and back-
pay.
4 Fn. 1, supra.
LOCAL 707, MOTOR FREIGHT DRIVERS 615
In asserting that we have ignored the provisions of
Section 13, which provides in pertinent part that
"[n]othing in this Act, except as specifically provided
for herein, shall be construed so as either to interfere
with or impede or diminish in any way the right to
strike," our dissenting colleague argues that absent a
specific proviso in the Act the Board is powerless to
deprive employees who picketed of their status as em-
ployees and may not refuse them reinstatement and
backpay. In support of this contention, he cites the
proviso to Section 8(d), which denies employee status
to employees striking contrary to subsection (4) of
that section, and he states, in substance, that by our
action in this case we are interpreting Section
8(b)(7)(B) as if it also contained such a proviso. In so
doing, our dissenting colleague, contrary to our views,
has again equated the right to strike with the right to
picket.
Although our decision here holds unprotected the
act of picketing, and not the strike, we are persuaded
that, in enacting Section 13, Congress did not confer
an absolute right to strike. In the final clause of Sec-
tion 13, Congress provided that nothing in the Act
was " ... to affect the limitations or qualifications on
that right." This clause was intended by Congress to
preserve the limitations on the right to strike already
engrafted by the Board and the courts.' And the Su-
preme Court has accepted this interpretation, stating
in N.L.R.B. v. Drivers, Chauffeurs and Helpers Local
Union No. 639, Teamsters (Curtis Bros.), 362 U.S. 274,
281-282:
However, the Court and the Board fashioned the
doctrine that the Board should deny rein-
statement to strikers who engaged in strikes
which were conducted in an unlawful manner or
for an unlawful objective.... These are the "lim-
itations or qualifications" on the right to strike
referred to in § 13.
It is thus clear that Section 13 does not restrict the
power of the Board to deny a remedy to employees
engaged in illegal activities to those instances where
the statute has "specifically provided for herein."
Rather, by retaining the "limitations or qualifications
on that right" existing at the time of its passage by
Congress, Section 13 has preserved the power of the
s See Senate Rep. No . 105, 80th Cong., 1st Sess. 28, 1 Legis. Hist. 434,
which states as follows:
It should be noted that the Board has construed the present act as
denying any remedy to employees striking for illegal objectives. (See
American News Co.,55 N.L.R.B . 1302,andThompson Products 72 N.L.R.B.
150.) The Supreme Court has interpreted the statute as not conferring
protection upon employees who str ike in breach of contract (N.L.R.B.
v. Sands Manufacturing Company, 306 U .S. 332); or in breach of some
other Federal Law (Southern Steamship Company v. N.L.R.B., 316 U.S.
31); or who engage in illegal acts while on strike (Fansteel Metallurgical
Corp. v. N.L.R. B., 306 U . S. 240).
This bill is not intended to change in any respect existing law as construed
in these administrative and judicial decisions . [Emphasis supplied.]
Board to deny remedies to employees who have en-
gaged in illegal acts or have struck for illegal objec-
tives. And it is this authority which we now exercise
to deny a remedy to those employees who engaged in
picketing contrary to the provisions of Section
8(b)(7)(B) of the Act.
Accordingly, as noted above, we affirm the Trial
Examiner's findings and conclusions, and we shall
adopt his recommended Order.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the Respondent Company, Claremont Polychemical
Corporation, Bethpage and Roslyn, New York, its
officers, agents, successors, and assigns, and the Re-
spondent Union, Local Union No. 707, Highway and
Local Motor Freight Drivers, Dockmen and Helpers,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers
agents, and representatives, shall take the action set
forth in the Trial Examiner's recommended Order.
MEMBER FANNING, concurring in part and dissenting
in part:
My colleagues adopt the decision of the Trial Ex-
aminer though it involves what I regard as a signifi-
cant failure to remedy a refusal to bargain by the
Respondent Employer and interpret the Supreme
Court's Gissel decision in a meaningful manner. In so
doing they decide adversely an important question of
employee rights not yet settled by the Board, to wit.
Do employees who engage in picketing for which their
union representative may be in violation of Section
8(b)(7)(B) lose their right to reinstatement?6
I agree with my colleagues that Respondent Em-
ployer violated Section 8(a)(1) by its president's
promises of benefit and threats of plant closure and
bankruptcy made to employees during the organizing
campaign of the Union, as well as by delaying the
return to work of employee Weaver (a nonpicketer
who was ill during the strike) and by refusing to rein-
state nonpicketing employee Russell after the strike.
I disagree, however, with their failure to find addi-
tional 8(a)(1) interference and an anticipatory refusal
to bargain based on two company bulletins to em-
ployees early in the campaign, to find 8(a)(5) based on
the refusal to recognize the Union, to find 8(a)(3), as
6 The facts in this case are unusual , involving as they do a union which had,
as I see it, a meritorious claim of 8(a )(5) violation before it began picketing
with signs protesting a refusal to recognize . Dicta in International Hod Car-
riers Building and Common Laborers Union of America, Local 840, AFL-CIO
(C. A. Bhnne Construction Co.). 135 NLRB 1153, fn. 24, to which I subscribed
at 1172-73, indicates that 8(b)(7)(C)-a section interrelated with
8(bX7)(B)-is not violated by a union which pickets more than 30 days
without filing an election petition if the union has a meritorious claim of
8(a)(5) violation. Here the significant issues, in my view, are the majority's
failure to give a bargaining order and to reinstate strikers who picketed even
assuming that Section 8(bX7)(B) has been violated.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well as 8(a)(1), with respect to Weaver and Russell,
and finally to find 8(a)(3) and (1) with respect to 11
rank-and-file employees whom I view as unfair labor
practice strikers discriminatorily discharged when
they sought to return to work, entitled to rein-
statement despite their picketing in a strike which as
to the Union may have been an 8(b)(7)(B) violation.
I would find that these strikers did not lose their em-
ployee status merely by picketing.
As to the Gissel aspect of the case, the Trial Exam-
iner concluded that the failure or refusal to recognize
"prior to the strike" was not an 8(a)(5) violation in the
absence of employer unfair labor practices that "so
seriously undermined support for the Union as to
preclude the holding of a fair election." He further
found that Respondent Employer should not be de-
prived of that interpretation of the unfair labor prac-
tices so found simply because the statute itself barred
an election (to test the representation claim) for an-
other 5 months.
In reaching his "no serious unfair labor practice"
conclusion, the Trial Examiner found merit in only
part of the prestrike interference and coercion alleged
in the complaint. He labeled this "minor" and con-
cluded that the strike "at its inception, at least, was
economic." Consistent with the Supreme Court's
analysis in Sinclair, that "employees are particularly
sensitive to rumors of plant closings and take such
hints as coercive threats rather than honest forecast,"
I view this "minor" interference as substantial.?
In addition to downgrading these prestrike unfair
labor practices of the Respondent Employer, the Trial
Examiner totally discounted the initial thrust of inter-
ference which occurred not long after a union meeting
held October 2, 1969, the first meeting of the organiz-
ing campaign. Respondent Employer distributed two
bulletins to its employees on October 10. One of these
began by acknowledging the current organizing cam-
paign and the Union's attempt to secure signed cards
at a recent meeting, reminded the employees that "the
Teamsters Union cannot petition us for an election
until one year after the previous election in March,
1969," erroneously implied that the Union could not
request recognition before that time,' flatly stated that
if the Union "at that time" had enough cards signed
it would not be recognized ("We will definitely refuse
this recognition."), stated that the Union would then
have to petition for an election in which each person
would have a chance to vote, assured employees that
signing a card did not mean that the signer had to vote
for the Union "on election day," expressed a purpose
7 N.L.R.B. v. Gissel Packing Co., Inc., The Sinclair Company v. N.L.R.B,
395 U.S. 575, 619, also fn. 31.
8 See Conren, Inc., 156 NLRB 592, 599, enfd. 368 F.2d 173 (C.A. 7), where
the Board expressly found that Section 9(c)(3) of the Act provides employers
with "no 1-year period of repose from the bargaining demands of unions,"
if in fact a union acquires a majority status in an appropriate unit.
to do everything in its power to keep the Union out,
and in the next sentence implied that benefits could
be anticipated ("We will be giving you our proposals
very soon."). The bulletin ended by twice urging a
"no" vote "on election day."9 Thus the Respondent
Employer combined several potent techniques to dis-
courage the union campaign: an anticipatory refusal
to recognize at the end of the year even if the Union
had enough cards, emphasis on the representation
question being decided only at an election that could
not be held until the end of the year, some 5 months
away, and a promise of possible benefits "very soon"
as a reward for keeping the Union out. Additionally
a specific benefit was implicit in the other bulletin
circulated on October 10. This requested an expres-
sion of individual employee opinion on a matter long
of employee concern: would the employee withdraw
from the existing profit-sharing plan if given the op-
portunity? In fact, the Company had some reason to
believe that the current union campaign grew out of
that problem. It is notable that an employee who had
been a member of the employee committee on profit
sharing for 3 years testified: "Ever since I have been
in the profit sharing plan I have been aware of the fact
that the employees wanted their money." He also tes-
tified that they made this known to the Company
"every time they got a chance." What better way to
promise a benefit than to suggest to employees that
the Company was actually doing something about the
problem?10 Obviously these two company bulletins
were issued to nip the campaign in the bud by threats
and promises, yet the Trial Examiner and my col-
leagues find the promises "too vague" and attach no
significance to the bulletins admittedly having been
prepared for distribution on the same day, early in the
union campaign.
9 Specifically, the entire text was as follows:
We heard that the Teamsters Union held an organizational meeting
at the Rendezvous Bar, in Roslyn, last Thursday night.
At the tune, they asked a number of our people to sign pledge cards.
We would like it understood that the Teamsters Union cannot petition
us for an election until one year after the previous election in March
1969. At that time , if they have enough cards signed, they may come
back and ask us to recognize them as the bargaining agent. We will
definitely refuse this recognition . The Union then must petition the
National Labor Relations Board to hold an election . Signing a card does
not mean that you must vote for the union on election day. Claremont
is going to do everything in its power to keep the Teamsters out. We will
be giving you our proposals very soon. We feel that all our people will
be much better off without the union . Remember you can vote NO on
election day even if you signed the card . VOTE NO ON ELECTION
DAY.
My colleagues construe this bulletin as a proper insistence by the Respon-
dent Employer on its right to test a majority claim by Board election. This
right is not available to an employer that has done its best to stifle organizing
activity. Linden Lumber, 190 NLRB No 116, does not apply in a context of
election interference.
10 This second October 10 bulletin of the Employer is interpreted by my
colleagues out of context , which is the way the Trial Examiner read it. In my
opinion its context and its timing brand it a significant invasion of the
organizing rights of employees . See Waters Distributing Company, 182 NLRB
967, where the promise of insurance coverage had been a "focal point of
employee interest" and the Board issued a bargaining order based on Gissel.
LOCAL 707, MOTOR FREIGHT DRIVERS 617
Next came the interference and coercion which the
Trial Examiner did find violative of Section 8(a)(1)
but labeled "minor." These incidents occurred a week
or so later in the campaign, about October 20, and
involve undenied promises and threats made by Com-
pany President Marlow, who did not testify. Marlow
created the opportunity to talk with two employees
individually, away from their work stations. To one,
Brown, he suggested the need for a grievance commit-
tee, to which he intended to appoint Brown once the
Union was "out." During this conversation Marlow
spoke of drawing no salary himself and having mort-
gaged his home, and stated that "he would definitively
have to close his doors"-that is, Claremont's doors-
if the Union came in. This conversation was afterward
repeated by Brown to his "fellow employees," four of
whom he named. The Trial Examiner properly found
this to be a promise of benefit and a threat of reprisal.
The other conversation was with employee Moss, to
whom Marlow promised a foremanship as soon as an
expected increase in sales occurred and the stabilizer
department was enlarged, saying on the same occa-
sion that the Teamsters "would cost" about $27 a man
in benefits and the Company would go bankrupt if it
came in. This conversation the Trial Examiner also
found to be a combined promise of benefit and threat
of reprisal. He even found that these remarks "un-
doubtedly contributed to the employees' determina-
tion to strike" but then noted that only two employees
were the direct recipients of such remarks, and pro-
ceeded to assess the impact of this conduct as negligi-
ble as a reason for striking, at least as compared with
the company refusal to recognize . Even as the Trial
Examiner saw it these were no "permissible pre-
dictions" of possible economic consequences as the
Respondent Employer would have the Board believe.
In fact, the plant closing remark did not even attempt
to describe the company economic problems but only
Marlow's personal finances . Without unduly belabor-
ing the point, a plant closing threat is perhaps the
most serious interference by speech with an
employee's Section 7 rights, as the Supreme Court
recognized in Gissel. A threat of this sort, in my view,
is apt to be repeated. In this case there is specific
evidence that it was. In the final analysis the Trial
Examiner ignored the record evidence of repetition of
the threat to other employees.
My colleagues discount the plant closing threat be-
cause its repetition by Brown to his fellow employees
brought laughter-an initial response connected with
the size of mortgage Marlow claimed to have on his
home, and hardly dispositive of the actual impact of
this threat when the employees had had time to reflect
on what at first may have seemed a preposterous joke
by the boss. The plant closing threat was, in the view
of my colleagues, "a more serious violation" than
Marlow's threat to Moss, though that was a bankrupt-
cy threat which strongly suggests that the plant will
close. They conclude, however, that neither threat was
so serious as to have "prevented a free and fair elec-
tion five months thereafter." Surely the test of inter-
ference in a case of this sort, where by statute an
immediate election is not possible but voluntary re-
cognition is, cannot be judged only in terms of elec-
tion impact. My colleagues see insufficient effect
upon an election conducted 5 months in the future,
and further attempt to render the conduct innocuous
by speculation that it was not apt to be repeated. Thus
they simply ignore the impact of the conduct on the
efficacy of ongoing organizing in preparation for a
request for voluntary recognition. It is my position
that, because an employer may not use the election-
free period to discourage his employees from seeking
voluntary recognition, a Gissel type remedy is in order
if it does. The Conren case (see fn. 3, above) estab-
lished this right to voluntary recognition during the
year following an election; Gissel, logically construed,
protects it.
The Trial Examiner's conclusion that the employ-
ees' dominant motive in striking was economic seems
entirely unpersuasive especially when it is remem-
bered that the employees were told by Respondent
Employer that recognition by the election route
would by law be delayed for months and that it would
not voluntarily recognize this Union even then. The
only hope of immediate representation for employees
was voluntary recognition by an employer not moti-
vated by a desire to thwart unionization. This Em-
ployer not only made clear its intent to thwart but was
implementing that intent by doing its best to cajole
and to threaten them to reject the Union. Finally,
there was the Employer's noticeable silence following
the actual recognition request on October 22, a silence
during which the Union made repeated unsuccessful
attempts to talk with company officials by telephone.
The strike followed, and not until it was under way,
as evidenced by the picketing, did the Respondent
reply to the Union's request, or voice any doubt of
majority status."
I By its letter of October 27, 1969, Respondent Employer acknowledged
receipt of the Respondent Union's October 22 telegram asserting bargaining
status and requesting a meeting. The letter went on as follows:
Please be advised that we do not believe that your organization repre-
sents a freely designated uncoerced majority of our employees in an
appropriate unit . Accordingly, we shall not recognize your organization
as bargaining agent for any of our employees until and unless it has been
certified as such by the National Labor Relations Board in a valid secret
ballot election conducted by that Board in an appropriate unit at an
appropriate time.
Should your organization file a request with the NLRB for such an
election in an appropriate unit at an appropriate time, we will, of course,
Continued
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is altogether patent that this strike was brought
about by the Company's anticipatory refusal to bar-
gain,12 coupled with immediate promises of benefit,
followed shortly thereafter by combined promises and
threats to two individuals whom the record shows to
have been among the most active union adherents,
and finally by the Company's pointed silence when
the claim for recognition was actually made. In these
circumstances an 8(a)(5) bargaining order based on
the card majority demonstrated at the hearing is ap-
propriate. This is not a case where the Respondent
voiced doubt of the Union's majority status as soon
as bargaining was requested, as was Morse Chain
Company, 175 NLRB 575. It is not a case where the
employer "absent election interference" or similar
conduct questioned majority and insisted on an elec-
tion, as was Linden Lumber, 190 NLRB No. 116.13 In
fact, no election was possible here within the imme-
diate future but clearly the conduct of Respondent
Employer interfered with union adherence. It is a case
where an undenied threat of plant closure by the com-
pany president was communicated to at least five em-
ployees. The particular sensitivity of employees to
such threats, as recognized by the Supreme Court in
Gissel, has already been emphasized herein. It is also
a case where an employee was promised a spot on a
grievance committee proposed by the company presi-
dent, the need for which was discussed in the context
of getting rid of the union. It is also a case of anticipa-
tory refusal to bargain accompanied by promises of
benefit, both specific and implied. And it is a case
where the request for recognition and bargaining was
made only after a valid card majority existed, as es-
tablished by this record.14 When made, the request
and the attempts to discuss it went unanswered for
several days-to be answered only after the strike had
commenced and picketing had occurred. In these cir-
cumstances the mere fact that an election could not
then be held and that the Union or any union was not
then entitled to seek recognition by picketing alone
should not bind this Board to the wisdom of applying
the reasoning basic to Gissel that a bargaining order
based on a card majority is the only way to remedy
significant employer unfair labor practices occurring
extend to the Board our cooperation in its task of processing the matter.
We would hope that the best interests of your organization are served
by your following a similar procedure than resorting to a patently illegal
picketing activity which you commenced today.
12 The anticipatory refusal to bargaining was not specifically alleged as a
violation . Nevertheless the Respondent Employer responded in detail to the
contents and purpose of the October 10 circular which contained the antic-
ipatory refusal to bargain , hence the question was fully litigated and forms
an appropriate basis for a finding.
13 Chairman Miller dissented in Linden Lumber, because of the apparent
intent of the majority to limit Arthur F Derse, Sr., President, and Wilder Mfg.
Co, Inc, 185 NLRB No . 76 another post-Gissel case, on the issue of knowl-
edge of majority status, a matter not here reached partly because of the scope
of the unfair labor practices.
14 The Trial Examiner found that the unit consisted of 43 employees and
the Union had 26 valid cards.
during an organizing campaign.
An employer that takes immediate steps to block a
union campaign by 8(a)(1) promises and threats at a
time when no election can be held, accompanied by
an anticipatory refusal to bargain and by deliberate
silence as its only prestrike response to a telegraphic
request for recognition and confirming letter, is surely
in no better position to oppose a bargaining order
than if an election could have been held. The unfair
labor practices here were extensive, more than enough
to have affected an election had one been possible,
and equally as effective to chill unionism in the
meantime. What is more, this pattern of unfair labor
practice activity was continued by the Respondent
Employer's refusal on November 6 to reinstate all
strikers, pending legal advice.15 At that time the Re-
spondent made no distinction between those who
picketed and those who did not, although Downey, an
employee who picketed several hours the first day of
the strike, had been permitted to return to work the
next day.
The Trial Examiner found that the strike was law-
ful. In fact, there was no contention that it was not.
He also found that only the Respondent Union could
be found to have violated Section 8(b)(7)(B), but that,
because that section proscribes picketing for recogni-
tion, those strikers who picketed lost their right to
reinstatement. My colleagues agree with this result.16
Section 8(b)(7)(B) is specifically concerned with un-
ion unfair labor practices. It says nothing with respect
to striking employees who engage in picketing pros-
cribed by it. Another section of the Act, Section 8(d),
does contain a specific penalty-in circumstances not
here present-for strikers as such; that is, loss of em-
ployee status. And then there is Section 13 of the Act,
of broad purport, which provides that "[n]othing in
this Act, except as specifically provided for herein,
shall be construed so as either to interfere with
or impede or diminish in any way the right to strike
...." I can see no reason for this Board to ignore
Section 13 and construe Section 8(b)(7)(B) as if it
contained a specific provision withdrawing employee
status from picketing strikers. The picketing here was
15 Respondent Employer ignored the Union 's November 3 telegram re-
questing reinstatement.
16 In National Packing Company, Inc., 158 NLRB 1680, enforcement de-
nied 377 F.2d 800 (C.A. 10, 1967), a case involving only 8 (a)(1) violations by
an employer who urged in defense employee picketing allegedly unprotected
because contrary to Sec. 8(b)(7)(B), the court denied enforcement, finding
that the picketing-regardless of the employer 's broken promises-was in
fact for recognition, hence unprotected when it occurred within 12 months
of a valid election . Thus, the court of appeals disagreed with the Board's view
that the right to strike and the right to picket "in that case " were "inextricably
part of the same" employee conduct . Since then the question of the effect of
mere participation in 8(b )(7XB) picketing has again been before the Board
in Blasingame Well Service, 174 NLRB 1126 . The Board found it unnecessary
to pass on the contention inasmuch as it agreed with the Trial Examiner that
the two employees in question lost their status as employees , one by reason
of job abolishment during the strike and the other by misconduct on the
picket line.
LOCAL 707, MOTOR FREIGHT DRIVERS 619
entirely peaceful. Even viewing the strike as eco-
nomic-as my colleagues do-there seems no need to
construe Section 8(b)(7)(B) to excuse the
Respondent's refusal to reinstate these peacefully
picketing strikers to jobs which were still unfilled
when, after a few days of picketing, they sought rein-
statement." The response to their request to come
back to work was: "I can't tell you. I'll have to consult
my attorney."" Nothing was said of the conduct of
the strikers (which was entirely peaceful) nor of their
abilities for the work at hand, the economics of the
situation, or similar concerns of management. No oth-
er response was ever given. Several days later on No-
vember 8, counsel advised the Company that it was
within its legal rights not to reinstate because of the
"illegal and unprotected picketing activity," in effect
saying that the picketers had lost their employee sta-
tus. My colleagues now agree and, in the process,
supply language to penalize the strikers that the Con-
gress did not use. Thus the scope of protected, con-
certed activities guaranteed by Section 7 of the Act is
seriously curtailed by this decision interpreting Sec-
tion 8(b)(7)(B) as if it specifically carried an employee
penalty as well as a union penalty.
My colleagues say that Section 13 confers no abso-
lute right to strike and does not "restrict the power"
of the Board to deny a remedy to an employee en-
gaged in an illegal activity. As to these propositions I
am in agreement, but they do not answer the problem
here. In International Rice Milling Co., Inc. v.
N.L.R.B., 341 U.S. 665, 673, the Supreme Court said
that Section 13 simply makes clear that "parts of the
Act which otherwise might be read so as to interfere
with, impede or diminish the union's traditional right
to strike, may be so read only if such interference,
impediment or diminution is `specifically provided
for' in the Act." The same thought appears in
N.L.R.B. v. Drivers, Chauffeurs and Helpers Local Un-
ion No. 639, Tea Teamsters (Curtis Bros.) 362 U.S. 274,
282, in a part of the opinion not quoted by my col-
leagues : " ... 13 declares a rule of construction which
cautions against an expansive reading of that section
which would adversely affect the right to strike, unless
the congressional purpose to give it that meaning per-
suasively appears either from the structure or history
17 On November 6 the picket signs were changed to read. "Claremont
Polychemical fired us because of activities in support of Local 707," although
one of the earlier refusal -to-recognize signs was seen at the Roslyn plant early
in the morning on November 10, the day that hearing was held in the U.S
District Court for the Eastern District of New York on the Board's 10(1)
injunction proceeding . The court reserved decision , but as of that day re-
quired that all picket signs with the Union 's name on them be removed from
the picket line, Judge Weinstein stating that he did not want anybody on the
line except the employees : "They're picketing for their own jobs until I decide
this."
is This was in response to the Thursday, November 6, offer of employee
Moss and others : "We want to come back to work," made at 7:45 a.m. to
Neithch , a principal officer of the Company "partially in charge of opera-
tions."
of the statute" I would also emphasize that only a few
lines above this pronouncement the Court itself
equated a Board order against peaceful picketing as
one which would "obviously `impede' the right to
strike."
The only impediment to peaceful picketing provid-
ed by Section 8(b)(7)(B) is against unions, and this is
subject to injunction under Section 10(1) of the Act,
and is given priority in investigation. My colleagues
look to cases like N.L.R.B. v. Fansteel Metallurgical
Corporation, 306 U.S. 240, to determine the unlawful
objective of the strike activity said to infect rein-
statement rights. There the Supreme Court could find
"no definite and unmistakable expression" in the Act
"to invest strikers with immunity from discharge" for
tortious acts against their employer's property. That
was a sound approach to protect employers from hav-
ing to retain persons in their employ regardless of
their own unlawful conduct, but unsuited as a test for
not having to retain these peaceful picketers. Here the
alleged disability is contained in the Act itself, in a
virtually self-enforcing section aimed specifically at
picketing by a labor organization. Had the Congress
in 1959 wished to penalize the individual picketer by
its 8(b)(7)(B) provision-and an intent to do this is
completely lacking in the legislative history-it had at
hand a perfect pattern in the last sentence of Section
8(d), enacted in 1947. It could simply have said that
employees who participate in such union picketing
would lose their status as employees. As that impedi-
ment to and diminution of the right to strike was not
enacted, the only interpretation of Section 8(b)(7)(B)
consistent with the Supreme Court's views is that em-
ployees who picket peacefully in this context retain
their employee status.
By affirming the Trial Examiner's decision my col-
leagues have in the process found serious unfair labor
practice violations by the Respondent Employer, a
fact which seems to escape them entirely in assessing
the unobjectionable conduct of the strikers.19 These
19 Although my colleagues do not reach the question whether this strike
activity is outside the protection of Section 7 because it occurred in conjunc-
tion with activity they find in violation of Section 8(b)(7)(B ), the problem
deserves some comment inasmuch as I view the strike as an unfair labor
practice strike . It has long been recognized that in strikes touched off by
employer unfair labor practices reinstatement rights do not depend on a
finding that the "picketing was conducted within the ambit of Section 7." See
N. L.R B v Thayer Company, 213 F.2d 748,754 (C.A. 1), cert . denied 348 U.S.
883. The court also explained , at p. 753, fn. 6, that engaging in activity
unprotected by Section 7 does not necessarily mean that the discharge of an
employee for participation in such action is "for cause" so as to prohibit a
Board reinstatement order pursuant to Section 10(c). .That depends on the
surrounding circumstances What is cause in one situation may not be in
another" The Board applied this principle in Kohler Co, 148 NLRB 1434,
1447, fn. 20, balancing mass picketing and coercive demonstrations against
many years of employer disregard of employee rights. It concluded that the
strike misconduct had no bearing on future job performance and would not
render the strikers in question unfit for future service , noting in addition that
the employer had already reinstated some who had engaged in similar con-
duct-precisely the situation we have here except that this Employer's unfair
labor practices were recent and this picketing was peaceful.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices, they say, are not serious
enough to warrant a bargaining order even though the
Union had a majority and formally requested recogni-
tion. Although I vigorously protest that result in this
case-and would find additional violations of signifi-
cance-the issue with respect to a bargaining order is
one on which reasonable men may differ. But my
colleagues say nothing about this background when
they come to the problem of reinstatement and the
impact of Section 8(b)(7)(B). They forget that this was
a legitimate organizational campaign resulting in a
proven majority and a conventional request for recog-
nition; that picketing was not a part of the campaign,
but followed it-as the result of employer unfair labor
practices in my view, in their view essentially for eco-
nomic reasons ; and that this peaceful picketing was
promptly enjoined by Board action against the Un-
ion. By no stretch of the imagination did Congress
mean-in such circumstances-to penalize individual
employees who engage in peaceful picketing. Denying
these picketing strikers reinstatement to their jobs-
except as to only one who gave up after an hour or
two-is a heavy penalty for a few days of peaceful
picketing!
TRIAL EXAMINER'S DECISION
SIDNEY D. GOLDBERG , Trial Examiner : The principal ques-
tion in this case is whether certain striking empplo ees, by
engaging in picketin violative of Section S(b)(7)(B) , there-
by forfeited their ri t to reinstatement on application.
This is a consolidated case . On November 18, 1969, a
complaint was issued in Case 29-CP-137, on a charge filed
October 27 , 1969, by Claremont Polychemical Corporation
(herein the Company), alleging that Local Union No. 707,
Highway and Local Motor Freight Drivers , Dockmen and
Helpers, International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America (herein Lo-
cal 707 or the Union), while in an organizing campaign
among the Company's employees , engaged in a strike and
picketed for recognition as the representative of those em-
ployees within the 12-month period following a valid elec-
tion and that, therefore, its picketing violated Section
8(b)(7)(B) of the National Labor Relations Act, as amended
(herein the Act). The Union denied that its picketing at the
Company's premises had an object of forcing or requiring
the Company to recognize it as the representative of the
employees , and the issue so raised was tried before me, with
all parties represented , at Brooklyn , New York , on Decem-
ber 19 , 1969.1
On March 23 , 1970, a complaint was issued in Case 29-
CA-1844 , based on charges and amended charges filed by
the Union on October 30, November 14, and December 31,
1969, alleging (i) that since October 18 the Union had been
the collective-bargaining representative of a majority of the
Company 's employees in an appropriate unit; (ii) that the
i Pursuant to Section 10(1) of the Act , the Regional Director applied to the
United States District Court for the Eastern District of New York for a
preliminary injunction pending the determination of this case by the Board
and an appropriate order was entered November 17, 1969. On the basis of
both stipulation and official notice , the evidence and proceedings before the
District Court are incorporated in this case.
Company had refused the Union 's demand for recognition
as such representative: (iii) that the Company had made
threats and had promised benefits to its employees to in-
duce them to cease being members of the Union ; (iv) that
by reason of the Company's conduct the employees had
gone out on strike; and (v) that upon the termination of the
strike and the employees ' request for reinstatement, the
Company had unlawfully refused to reinstate certain named
employees. This conduct, it alleged, constituted violations
of Section 8(a)(1), (3), and (5) of the Act.
On the basis of this complaint , the General Counsel made
a motion to reopen Case 29-CP-137 and to consolidate
Case 29-CA-1844 with it. The Company filed opposition to
the motion but, by order dated April 16, 1970, the motion
was granted and the consolidated case set for further hear-
in
Yhe Company thereafter answered , admitting that it had
refused to reinstate the named employees and that it refused
to recognize the Union but denying that the Union repre-
sented a majority of its employees in the unit or that it had
committed any unfair labor practices . The issues so raised
were tried before me at Brooklyn , New York , on April 28,
29, and 30; May 26 and 27 ; and June 22 and 23 , 1970. All
parties were represented by counsel , afforded an opportuni-
ty to adduce evidence , cross-examine witnesses , and argue
on the facts and the law . On May 26 the General Counsel
moved to amend the complaint to add allegations of inter-
ference, restraint , and coercion and to add an allegation
that an additional employee had been unlawfully discrim-
inated against by the Company (Case 29-CA- 1992). The
motion was granted , the Comppany answered, and evidence
was taken concerning these allegations. Briefs filed by the
General Counsel and the Union in Case 29-CP-137 before
consolidation, and by the General Counsel and the Compa-
ny upon all three of these cases, after consolidation and
trial, have been considered.
For the reasons hereafter set forth in detail , I find that the
Union's picketing of the Company's premises , from October
27 until November 17, 1969 , violated Section 8(b)(7)(B) of
the Act . I also find , however, that although the Union, since
October 18, 1969, was the collective-bargaining representa-
tive of the employees , the Company's refusal to recognize
and bargain with it did not violate Section 8(a)(5) of the Act.
Finally, I find that those striking employees who partici-
pated in the picketing were guilty of misconduct which jus-
tified the Company in refusing to reinstate them but that
those who did not picket were entitled to reinstatement on
application.
Upon the entire record herein,3 and the demeanor of the
witnesses while testifying, I make the following:
FINDINGS OF FACr
1. The parties
The Company, a New York corporation , is engaged in the
manufacture and sale of chemicals and chemical products.
It operates two plants, one at Bethpage and the other at
Roslyn, New York. The answers of both the Union and the
Company admit the factual allegations concerning the
Company's commerce and I find that it is an employer
engaged in commerce.
The answer of the Union in Case 29-CP-137 admits that
both it and Truckdrivers Local 807, International Brother-
2 The Company applied to the Board for leave to appeal from this order
but, on April 28, 1970, the Board denied the appeal as lacking merit.
3 Typographical errors in the transcript of proceedings before me have
been corrected by order dated October 5, 1970.
LOCAL 707, MOTOR FREIGHT DRIVERS 621
hood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America (herein Local 807) are labor organizations.
The answer of the Company in Case 29-CA-1844 also ad-
mits that the Union is a labor organization.
2. Background
The principal facts in these cases are not seriously in
dispute . On March 25 , 1969, a Board election was conduct-
ed among the production and maintenance employees 4 of
the Company on a petition by Local 807 to be certified as
the collective-bargaming representative of those employees.
Local 807 received only 18 of the 48 valid votes cast and the
result was certified on April 2.
3. Summary of events
In the latter part of September 1969, at the invitation of
some company employees , the Union commenced an effort
to become the collective-bargaining representative of the
Company's production and maintenance employees. Leo
Schwartz, recording secretary of the Union , was in charge
of the campaign . On October 2, he held a meeting of compa-
ny employees at the Rendezvous Bar in Roslyn , explained
what the Union could do for the employees , and obtained
17 executed authorization cards . He also made available
blank cards , which some of the employees took for circula-
tion among employees absent from the meeting, and 11
additional cards were executed and returned to him by Oc-
tober 21 . On the basis of the 28 cards and his information
indicating that there were approximately 44 employees en-
ggagged in production and maintenance , on October 22,
Schwartz sent a telegram and a confirmatory letter to the
Company stating that the employees had designated the
Union as their bargaining agent and requesting a meeting,
within 24 hours, to discuss a contract . Receiving no answer,
Schwartz made several unsuccessful attempts on Thursda,y
and Friday , the 23rd and 24th , to reach the Company s
officials by telephone .5
On Monday morning, October 27 , a number of employ-
ees from both plants met at the gate of the Roslyn plant.
Also present were Schwartz and one or two other officials
of the Union . Schwartz told the employees about his unsuc-
cessful efforts to reach the company officials and the men
decided to go out on strike and picket both plants . Accord-
ingly, those stationed at the Bethpage plant went back there
and set up a picket line . The signs they carried had been
prepared by the Union and read as follows:
Claremont Polychemical
refuses to recognize
Local 707 11
On November 3 the Union sent the Company a telegram
4 The unit stipulated by Local 807 and the Company was as follows:
INCLUDED: All production and maintenance employees including
shipping and receiving employees , truck drivers, and working foremen,
employed at the Employer's premises located at 39 Powerhouse Road,
Roslyn Heights, N.Y. and 501 Winding Road , Old Bethpage, N.Y.
EXCLUDED: Salesmen , office clerical employees , laboratory employ-
ees, professional employees , watchmen , guards, and supervisors as de-
fined in the Act.
It was also stipulated that the "working foremen" were not supervisors.
He did reach Martin H . Wiesenfield, comptroller, office manager, and
personnel director of the Company, but Wiesenfield said there was nothing
he could do about the matter except forward a message to the interested
officials.
6 On the same day, the Company filed a charge of violation of Section
8(b)(7)(B) by the Union and sent the Union a letter stating that it doubted
that the Union represented a "freely designated uncoerced majority of our
employees in any appropriate unit."
stating an offer by the striking employees unconditionally
to return to work but the Company made no response. On
November 6, early in the morning and before picketing
began, 11 of the men still on strike entered the Roslyn plant,
spoke with Mark W. Neitlich, the Company' s treasurer and
manufacturing manager, and again made an unconditional
offer to return to work. Neitlich said he couldn't give them
an answer until he had consulted counsel, whereupon the
men left the plant and again set up their picket line. Neitlich
testified that, after consulting counsel, the Company decid-
ed not to reinstate the men.
On that same day, November 6, the Union sent the Com-
pany a telegram stating that the picketing was no longer to
secure recognition for the Union but solely to obtain rein-
statement of the employees who had offered to returns
Beginning on the followinday, November 7, the picket
signs were changed to read:
Claremont Polychemical
fired us because of our
activities in support of Local 707
and the picketing with this sign 9 continued until an injunc-
tion was issued on November 17, 1969. As far as shown on
this record, it has not been resumed.
4. Contentions and issues
On the basis of the foregoing facts , in Case 29-CP-137
the General Counsel and the Company contend that the
Union's picketm* was in violation of Section 8(b)(7)(B) of
the Act. In Cases29-CA-1844 and 29-CA- 1992 , the Gener-
al Counsel and the Union contend that the Union had been
designated as the collective-bargaining representative of the
Company's employees and was entitled to recognition as
such representative ; that the strike was the result of the
Company's unlawful refusal to recognize the Union and its
other unlawful conduct ; that the employees were entitled to
reinstatement upon their application therefore ; and that the
refusal of the Company to recognize the Union and rein-
state the employees are unfair labor practices requiring re-
medial sanctions.
The Union, in Case 29-CP-137, contends that its picket-
ing was lawful and conducted "in protest against
Claremont's unfair labor practices , including Claremont's
unlawful refusal to recognize the Union" and that, com-
mencing November 5, the object of the Union's picketing
was "only to protest the discharge of the employees."
The Company, in Cases 29-CA-1844 and 29-CA-1992,
contends that the circumstances of the execution of the
cards render them invalid as designations of the Union to
be the bargaining representative of the employee -signers
and that some of the cards were inadequately executed. It
also contends that , even if the cards do establish the Union's
status as the representative of the employees , no bargaining
order should issue against it because the Company has not
7 The Company admitted the allegations of the complaint setting forth
these facts In addition to these employees , Roderick A . Russell , Jr., a part-
time employee, did not come to work as long as the picketing continued but
when the picketing ceased he requested and, the Company admits, was
refused reinstatement. Another employee , John Weaver , who failed to report
on October 27 by reason of illness, was also refused permission to go to work
for a week after his attempt to return.
8 It was also on November 6 that the court issued an order to show cause
in the injunction proceeding instituted by the Board 's Regional Director
against the Union based upon the Company 's charge, but, since formal
service of the order was not made on the Union until the following day, no
inference can be , or is, drawn from this concurrence of events.
9 Neithch testified that early in the morning on November 10, the day of
the hearing of the application for an injunction, an employee named Rickie
Brown picketed at the Roslyn plant with the recognition sign.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in conduct making a fair election impossible. On
the principal issue, the refusal to reinstate the striking em-
ployees, the Company contends that, by their picketing in
violation of Section 8(b)(7)(B), the employees engaged in
unprotected activity justifying their discharge.
5. Discussions and conclusions
a. The case against the Union
The facts are, as stated above, substantially undisputed:
On October 22 the Union demanded recognition as the
collective-bargaining representative of the Company's em-
ployees in the unit involved in the election conducted by the
Board and the previous March; the Company failed to grant
recognition, and, on October 27, 1969, the Union, using
both its own officials and several of the Company's employ-
ees, began picketing with signs reflecting the Company's
refusal . Inasmuch as an election had been conducted within
12 months prior to the picketing, and since both the Union's
demands and the legend on the picket signs clearly indicate
that an object of the picketing was recognition, these facts
appear to constitute a prima facie showing of violation of
Section 8(b)(7)B).
The Union's defense, as stated in its brief, is that
The Union's initial picketing was not to require
Claremont to recognize it, but was in protest against
Claremont's unfair labor practices, including
Claremont's unlawful refusal to recognize the Union.
The argument of the Union in support of its defense,
however, is that the holding of the election does not give the
employer "a twelve month repose from the bargaining de-
mands of unions", and it cites, in support, Conren Inc., 156
NLRB 592, and Astoria General Tire Co., 170 NLRB No. 78.
The difficulty with the argument is that, while the statement
of the law is a correct one in a proper context and the
authorities cited support it, the principle is inapplicable
herein. In both Conren and Astoria the proceedings were
directed against the employers, the violations alleged were
of Section 8(a)(5), and the conduct involved consisted of
refusals by those employers to recognize the unions. Neither
case involved picketing by the union 10 for the recognition
it claimed and in both cases the means chosen by the unions
for the enforcement of their claims was the processes of the
Board. In this case, on the contrary, the Union chose to
picket as a method of self-help, and the question in this part
of the consolidated case is not whether the Union was enti-
tled to recognition but whether its conduct in picketing the
Company's premises was an unfair labor practice under
Section 8(b)(7)(B) of the Act.
The Union further argues that its picketing was "not to
force or require Claremont to recognize the Union" but "to
protest Claremont's unfair labor practices" and "the refusal
to recognize was the conduct it was protesting." In the
context of this case the Union's argument is an attempt, by
rearrangement of words, to change the unalterable fact that,
by its demand for recognition, by Schwartz' message to the
employees immediately prior to the commencement of the
picketing that he had had no answer to the demand for
recognition, by the statement on the picket signs that the
Company refused recognition, and by its failure to date to
disavow this goal, the Union made it absolutely clear that
at least one of its objects in picketing was to force Clare-
mont to recognize it. 1 I reject the Union's characterization
10 While there had been picketing in Astoria, the union had discontinued
it and the charge based upon the picketing had been withdrawn.
11 See -New York Joint Board, Amalgamated Clothing Workers of America,
of its object and find that an object of its picketing was
forcing or requiring Claremont to recognize the Union as
the collective-bargaining representative of the Company's
employees in the unit involved.
The Union's argument that its status as the designated
representative of the Company 's employees exempts it from
the prohibition of Section 8(b)(7)(B) is refuted both b the
unmistakable wording of the section and by its le islative
history . The first part of Section 8(b)(7)(B) exempts from its
strictures only a labor organization "currently certified as
the representative of such employees" but the Union's argu-
ment would extend the exemption to a labor organization
which has been designated as collective -bargaining repre-
sentative by a majority of the employees . The legislative
history of the section discloses that is extended exemption
was in the bill as it was passed by the Senate , but, when
recommended to both Houses by the Conference Report,
the exemption was limited to certified labor organizations
and it was enacted as recommended . Accordingly, the
Board has held the phrase means precisely what it says, and
any attempt to extend its exemption to a labor organization
claiming to represent the employees on the basis of their
individual designations must be rejected.12
The Union's argument that its picketing, since it was in
protest against the Company 's unfair labor practices, was
permissible notwithstanding the proscription of Section
8(b)(7)(B) on the authority of Mastro Plastics Corp. v.
N.LR.B., 350 U . S. 270, must also be rejected . Both the
statutory provisions involved and the nature of the activities
are quite different : The only similarity is that in both cases
alleged employer unfair labor practices form the basis for
the dispute . In Mastro Plastics the employer contended that
its employees who struck without observance of the delay-
following-notification requirement in Section 8(d)(4) had
thereby lost their status as employees in accordance with the
provisions of the section . Both the Board 13 and the Su-
preme Court noted that the strike, albeit without observance
of the waiting period in Section 8(d), was not to force any
modification of the contract but only was a measure of
self-help against the employer 's unfair labor practices which
were "unrelated to the actual operation ofthe contract."
The notification requirement in Section 8(d) runs to strikes
to terminate or modify collective -bargaining contracts and
the holding in Mastro Plastics is simply that, since a strike
in protest against unfair labor practices is not one to termi-
nate or modify a contract , the notification provision in that
section is inapplicable . In the case at bar the prohibition in
Section 8(b)(7)(B) is not directed against unfair labor prac-
tice strikes but against picketing for recognition . According-
1 , since the picketing in this case clearly was, and has been
found to have been , at least partially recognitional in its
object, notwithstanding any unfair labor practices by the
Company, the Union was not entitled to employ that
particular means to counter them and , therefore, by its pick-
eting it has violated that section.
For the purpose of formulating an appropriate remedy in
this aspect of the case, it is necessary to determine the time
period of the picketing herein found to be an unfair labor
practice . Although the Union made an attempt, by its tel-
egram of November 6 to the Company and by the change
in its picket signs described above, to portray the object of
its picketing from that time forward as limited to its protest
AFL-CIO (Superior Paint.; Inc.), 181 NLRB No. 149 ; Painters Local 272,
Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO
(Charles R. Curtiss), 183 NLRB No. 89.
11 Teamsters, Chauffeurs, Warehousemen and Helpers, Local 901, IBT (Va-
lencia Baxt Express, Inc.), 137 NLRB 808 , enfd . 314 F2d 792 (C.A. 1).
11 103 NLRB 511.
LOCAL 707, MOTOR FREIGHT DRIVERS
against the Company's unfair labor practices , it conceded
that it has continued to claim that it was , and is , entitled to
recognition . 14 With respect to the change of picket signs,
Neitlich testified that , although some of the signs were
changed beginning November 7, he nevertheless saw one of
the recognitional signs displayed on November 10, the day
of the hearing of the injunction application . Schwartz, when
first questioned on this point , testified that the change in
signs was made "on the morning of the 11th , the day after
the hearing in court ," but, under guidance of the Union's
counsel, he changed his testimony to fix the date of the
change in picket signs as November 6 and then November
5. While the Union probably attempted to change the picket
signs on November 5 or 6 , Schwartz testified that he made
no effort to recover the recognitional signs which he had
previously issued to the picketers and I accept Neitlich's
testimony that a recognitional sign was displayed on No-
vember 10 . By reason of its conduct up to that point and its
responsibility for distributing the picket signs to the picket-
ers, I find that the Union was responsible for the use of the
recognitional picket sign on November 10. Moreover, in
view of the Union's continued claim for recognition and
despite its telegram of November 6, I find that the picketing,
to its very end on November 17, had as an object thereof
the recognition of the Union.
b. The case against the Company
(1) The unit
There is no dispute in this case that the unit described in
the representation proceeding involving Local 807 is appro-
priate for the purpose of collective bargaining. Moreover,
the number and identity of the employees in that unit on
October 22, 1969, the critical date of the Union's demand
for recognition, is disputed only with respect to two individ-
uals. Other than these, however, the parties agreed that the
unit contained 43 named employees.
The two employees whose inclusion in the unit is sought
by the Company and opposed by the General Counsel and
the Union are Howard Smith, an order clerk, and Alvin
Shavis, an ex-employee who had applied for work on Octo-
ber 21 and had been instructed to report for duty on Octo-
ber 23. Assuming, as the Company contends, that Shavis
was actually hired on the 21st, it is not disputed that he was
not at work on the 22d, the date of the demand, and, there-
fore, he cannot be considered as part of the unit on that
day.15
Smith testified that his work, prior to the week including
October 22, consisted of taking orders over the telephone
and that at that time he performed his duties at a desk in
the office occupied by Wiesenfield and a female employee
who acted as their typist and also received telephone orders.
During the week commencing Monday, October 20, Smith
began his transfer to a position as plant buyer, spending half
of each day at his old position and half at the new one. In
setting forth its contention with respect to this employee, the
Company states that "on October 20, Smith had been trans-
14 Even assuming that the Union had completely eliminated recognition as
an object of its picketing , its prior conduct in violation of Section 8(b)(7) (B)
would require a finding of violation and a remedial order.
I5 Colecraft Mfg. Co., Inc., 162 NLRB 680, 689 ; Barry Controls, Incorporat-
ed, 113 NLRB 26,17; The Goldenberg Company, 77 NLRB 335, 339. The case
cited by the Company on this point , Henry Colder Company, 163 NLRB 105,
114, deals with the status of a late -signed card during a period of continuing
demand for recognition and is inapposite , particularly since the demand was
the act of the Union and the Company may not fix the date thereof for its
own purposes.
623
ferred from his position as an order taker in the office, to
that of a leadman in the Receiving Department in the pro-
duction area ." Implicit in this statement is a concession that,
as an order taker , Smith was an office clerical employee
specifically excluded from the unit . On the facts, I find that
during the week of October 20 , with respect to his duties as
an order taker, Smith was an office clerical employee not
within the unit.
With respect to Smith 's duties as the plant buyer, the
General Counsel's contention in his brief is that since they
"involve the purchase of materials and supplies ... [they]
place him in the position of a managerial employee having
interests substantially different from those of the produc-
tion and maintenance employees ," and that he should be
excluded from the unit . At the hearing , the General Counsel
also contended that Smith 's duties continued to be clerical.
The Com any 's position , as stated, is that Smith became "a
leadman m the receiving Department" and that
His testimony reveals that his terms and conditions are
no different from other leadmen already included in
the unit, and because of this community of interest, he
also should be included in the unit.
Smith's testimony shows that , as the plant buyer, he is
required to maintain a continuous check on the stock of
chemicals which the Company maintains both for resale
and for use in the manufacture of its products . He is also
charged with maintaining a supplyyof its products . He is also
charged with maintaining a su pl of the containers for the
shipment of chemicals, samples, and manufactured prod-
ucts. To maintain these stocks at their desired levels, he has
both the authority and the duty to make purchases and
these range, he testified , up to $25 ,000 per week. These
chemicals and containers are in his custody and , on request
of the production or shipping departments , he sends mate-
rials to them. Two laborers , concededly in the unit, perform
the physical work of handling the material as it comes into
the plant, as it is placed upon or moved about on the storage
shelves , and as it is transferred to the production or shipping
departments. While Smith occasionally lends a hand at
moving things about , he does so only when his laborers are
not available or insufficient for the immediate task and
when he prefers not to ask for the assignment of extra help.
These incidents are infrequent and they total only about 2
to 4 hours per week . From time to time , in the absence of
one of his helpers , he has requested and has had assigned
to him employees from elsewhere in the plant.
Smith's testimony shows that , except for these infrequent
occasions , his work is entirely different from the other two
workers in the receiving department . Smith checks the doc-
uments relating to the incoming material , while his men
handle it off the trucks , and his information concerning the
inventory levels comes principally from the records in his
office, although he checks the physical presence of supplies
from time to time . Smith also testified that, while his men
work under his direction , they automatically fill requests for
supplies from the production department , and that his di-
rections to them usually cover "out of the ordinary things."
Smith's normal place of work is in a private office near the
receiving dock , while his men work out in the plant area
and, unlike them, he is compensated on a salary basis.16
Finally , Smith testified that it is his function to purchase
supplies as he finds them needed for the proper o pperation
of the plant and that the purchases he makes for this pur-
pose are substantial in amount. Since the General Counsel
does not contend that Smith 's duties made him a supervisor,
16 The Company 's proposal of increased benefits, dated April 30, 1969,
clearly indicates, by proposing overtime pay after 8 hours per day, that the
general employees are compensated on an hourly basis
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that question need not be decided but it seems clear to me
that, while Smith's duties are related to production, they are
so different from those of the rank-and-file employees that
he cannot be classified as a production employee. The gen-
eral nature of his work, as well as the fact that he is respon-
sible for maintaining plant supplies at a level necessary to
keep the plant operatin g, and Ins authority to commit sub-
stantial company funds for that purpose, all lead me to
conclude that Smith's duties are clerical and managerial in
nature,"that he does not have a community of interest with
the rank-and-file employees, and that he should not be
included in the unit.
From the foregoing it follows, and I find, that on October
22, 1969, when the Union demanded recognition as the
representative of the production and maintenance employ-
ees, neither Shavis nor Smith was in the unit and that it
consisted of 43 employees.
(2) The card majority
When the Union made its demand for recognition it had
in its possession signed authorization cards from 28 employ-
ees. Only 26, however, were proved sufficiently to be re-
ceived in evidence.'8
With respect to the 26 cards received in evidence, the
Company attacks the validity of the 15 signed at the Ren-
dezvous Bar on October 2, contending that they should not
be counted,
because Schwartz' s statements that evening created the
impression that the signin of union authorization
cards made employees eligible for the substantial bene-
fits provided by the Teamsters Pension and Medical
Plans.
and citing, in support of this contention, D. H. Overmyer
Co., 170 NLRB No. 69, and Wagner Electric Corporation,
167 NLRB 532. In both of the cited cases the evidence was
clear that the Teamsters union representative went to great
lengths to make the employees believe that, merely by sign-
ing application cards, they would receive, and were then
receiving, free of cost, life insurance coverage and other
benefits. There is no such evidence in this record and the
Company, by the statement in its brief that Schwartz "cre-
ated the impression," practically concedes that this is so.
Schwartz' testimony shows that he told the assembled em-
ployees "what 707 had to offer ... if they chose Local 707
as their bargaining agent," that he told them about the
Union's medical and pension programs, and that he de-
clined to discuss wages in detail because .,in negotiating
with the employer we have to be fair and reasonable about
it ... we weren t here to put the company out of business."
In addition to Schwartz' testimony, the Company points to
four brief bits of employee testimony: two concerning de-
17 In determining whether an employee is "managerial" and properly ex-
cluded from a production and maintenance unit, consideration must be given
to all the relevant factors, including the extent of his authority to make
financial commitments on behalf of his employer. In Howard Johnson Com-
pany, 174 NLRB No. 182, the employee designated "chief engineer," al-
though the only other engineer had merely an overlapping tour of duty with
him, was authorized to make routine purchases of maintenance materials and
parts to keep the ice cream-making machinery operative He had nothing to
do with the purchase of "capital supplies" and the Board held that he was
not a managerial employee. On the other hand, in Eastern Camera and Photo
Corp., 140 NLRB 569, 572, the employees involved were held to be manage-
rial where they prepared bids for the supply of equipment to potential cus-
tomers and they regularly ordered equipment from the manufacturers,
committing the credit of their employer.
is The signers of the other two cards, Stanley J. Obnski and Irving Benja-
min, do not appear on the agreed list as of October 22, 1969, and there was
no additional proof adduced concerning them or their cards.
tails of the Union's medical program, one to the effect that
Schwartz told the employees "they would have such a [re-
tirement] plan if they joined the Union," and one that it was
said to employee Torres that a hi-lo operator was "supposed
to get $140 a week."
All of the foregoing, I find, was a reflection of what was
said by Schwartz in explanation of the Union's goals in
wages and in description of the standards of the benefit
program which the Union would propose and which it
would try to get the Company to support through a collec-
tive-bargaining contract. There is nothing in the testimony
of Schwartz or the employees to support a contention that
the employees were given even an impression that their
signing of union cards, by itself, gave them anything more
than representation by the Union-much less that it served
to confer upon them the "instant benefits" found objection-
able in the cases cited. Accordingly, this contention is reject-
ed.
Respondent attacks specifically the validity of the cards
of three employees: Federico Torres, Paul Harper, and Os-
car Worley.
(i) Federico Torres: The card of this employee was in the
group of 17 cards which, Schwartz testified, he received at
the October 2 meeting but upon which, he also testified, he
did not place any identifying marks. Torres identified the
card and his signature on it ; he testified that he received it
at the Rendezvous Bar from Alfred Shoates, one of the
employees most active in the organizing campaign , and that
Shoates simply said that if he wanted to join the Union to
fill it out and return it, but that since he reads and writes
English "a little," he took it home with him. The same or the
following evening, Torres testified, he and a friend, who
speaks and writes English, sat down at a table with the card
in front of them; he asked his friend "to fill it up for me,"
and he gave his friend the name of the Company, the name
of the local, his social security number, and the type of work
he did. The day following its completion, Torres testified, he
returned the card to Shoates. It was apparent at the trial that
Torres had some difficulty with the English language but his
testimony, except in one or two instances where he obvious-
ly could not understand the question and gave an answer
consistent with the general tenor of his testimony , was not
confused in its main outline. Accordingly, I find that Torres
understood both the contents and the purpose of the card,
that it was completed at his direction, and that he signed it.
The testimony of Schwartz that this was one of the cards
signed and turned over to him at the Rendezvous Bar on
October 2 is obviously incorrect, but Schwartz' error can af-
fect only his own credibility-the execution and delivery of
this card is adequately proved by Torres' credited testimo-
ny. Accordingly, I find that this card constitutes a valid
designation, by Torres, of the Union as his collective-bar-
gaming representative.
(ii) Paul Harper: The Company's attack on the validity of
the card of this employee is based upon the fact that the
space on the authorization card for the number of the local
is not filled. Harper testified that he obtained the card from
fellow employee Dotson on October 17, and that he read the
card, filled in the information required, signed it, and re-
turned it to Dotson who said he would "take care of it."
Harper testified that he had noted that the reverse side of
the card carried the words "Local 707" in heavy type and
that he knew he was signing the card for that local. He also
testified, however, that he was somewhat confused by the
prior organizing cam aign of Local 807 but assumed that
the two locals, 807 and 707, were engaged in some kind of
joint campaign on this latter occasion. From Harper' s testi-
mony it seems clear to me that he intended, by signing the
LOCAL 707, MOTOR FREIGHT DRIVERS 625
card, to designate as his representative the labor organiza-
tion then seeking the support of the Company's employees.
Whether he knew the full name of the Union or even its
numerical designation is unimportant: There was only one
labor organization then active among the Company's em-
ployees and that is the one Harper intended to designate.19
Accordingly, I find that Paul Harper, by completing (except
for the local number) and signing the card, effectively desig-
nated the Union as his bargaining representative.
(iii) Oscar Worley: This employee's name appears on the
stipulated list of employees in the unit as of October 22,
1969, and the complaint contains allegations of unlawful
discrimination by the Company against him. At the trial,
however, the General Counsel stated that he had not been
able to locate Worley and he withdrew the allegations of
discrimination, but he did not withdraw Worley's authoriza-
tion card as proof of the Union's majority on the date of
demand. The Company contends that the failure to produce
Worley for authentication of his signature precludes the use
of this card in proving the Union s majority.
Employee Dotson, one of those active in the organizing
campaign, testified that he knew Worley and had been his
foreman, that Worley was present at the October 2 meeting
at the Rendezvous Bar, and that they sat about 7 to 9 feet
apart. During the meeting there was a pile of union booklets
on the table and Schwartz said that those interested in hav-
ing the Union there could pick up a card and sign it. Dotson
testified that he saw Worley pick up a card and fill it out,
borrowing his, Dotson's, pen for the purpose, and that he
saw Worley hand the card to one of the people there. He
conceded that he had never had Worley's card in his hand
or had an opportunity to read it.
In support of the validity of this card, the General Coun-
sel subpenaed, and the Company produced from its records,
the tax withholding exemption certificate (W-4 form of the
Treasury Department) signed by Worley °for comparison
with the signature on the authorization card. The Company
objects to this procedure, citing Aero Corporation, 149
NLRB 1283, and contends that the comparison can be
made only by a handwriting expert. While it is true that in
the case cited, the comparison was made by a handwriting
expert, the Board decision does not hold that such compari-
son may not be made directly by the trier of fact. On the
contrary, 28 U.S.C. Sec. 1731 provides that:
The admitted or proved handwriting of any person
shall be admissible, for purposes of comparison, to de-
termine genuineness of other handwriting attributed to
such person.
Moreover, it is to be noted that, when Title 28 of the Code
was enacted as substantive law by the Act of June 25, 1948,
62 Stat. 945, the words " as a basis for comparison by wit-
nesses , or by the jury, court, or officer conducting such
proceeding" were omitted and that they were omitted, ac-
cording to the reviser's note, "as superfluous." In U.S. v.
Swan, 396 F.2d 883 (C.A. 2), the court affirmed a criminal
19 The cases cited by the Company are inapposite: in Conren, Inc., 156
NLRB 592 at 620, the employee had signed cards for two different unions,
and in John S. Barnes Corporation, 180 NLRB No. 139, the cards disallowed
were vague and equivocal with respect to their use for election purposes, as
well as having been signed in a union campaign a full year earlier.
20 Title 26 U.S.C. Sec. 3402 (f)(2)(A) requires that each employee, on or
before the first day of his employment , "shall furnish the employer with a
signed withholding exemption certificate relating to the number of withhold-
ing exemptions which he claims ...... The Company raised no question
concerning the authenticity of Worley 's signature on this certificate and I
have no reason to doubt that the form was in its files after observance of the
statutory requirement of signing by the employee. Accordingly, I find it to
be a genuine signature of employee Worley.
conviction where there were submitted to the jury the exam-
ples of defendant's handwriting upon which the prosecution
was based together with, for comparison, examples of hand-
writing extraneous to the case, with evidence tending to
prove that they were written by defendant. The Board has
also held that trial examiners may determine, from compari-
son of disputed signatures with proved or admitted ones,
whether signatures on authorization cards are those of
particular employees.21
In the light of the foregoing principles, I have compared
the writing and signature on the union authorization card
of Worley with his W-4 form from the Company's records.
I find them remarkably similar and I also find a remarkable
similarity between the numerals on both documents as well
as the misspelling of the address on both as "Springfeild
Gardens" although the New York City map designates a
nearby community with the usual spelling as "Springfield
Gardens." Accordingly, I find that the authorization card
was signed by Worley and that it constitutes a valid designa-
tion of the Union as his bargaining representative.
Summing up, therefore, I find that on October 22, 1969,
the Union had been validly designated by 26 of the 43
employees in the designated unit.
(3) The nature of the strike
As noted above, the Union requested recognition, by tel-
egram and letter, on October 22, it followed up these re-
quests by the phone calls of Schwartz on the 23d and 24th,
and Schwartz informed the employees on the 24th of his
lack of success in obtaining any answer to the Union's
request. The record shows that it was in the light of the
Company's failure to respond that the men decided to strike
and did strike on Monday morning, October 27. The com-
plaint alleges that the strike was "caused and provoked" by
the Company's unfair labor practices: (a) in refusing to
recognize the Union, (b) by its improper offers of benefits
contained in the two circulars distributed to the employees
on October 10, and (c) by additional offers of benefits and
threats of reprisal. These offers of benefits and threats of
re risal are also alleged as independent violations of Section
8(aa)(1) 22 The General Counsel's brief, in support of the
additional element of provocation for the strike, based upon
the two circulars, argues that they must be read together:23
first, that the Company's union animus is shown by the
statement in the circular relating to organizational activity
that it would "do everything in its power to keep the Team-
sters out" and second, that its promise of benefits must be
inferred from that statement, from the statement imme-
diately following in the same circular that it "will be giving
you our proposals very soon," and from the fact that the
other circular deals with the profit-sharing plan. Adding all
this together, the General Counsel argues, must result in a
finding that, by these circulars the Company made "a thinly
veiled promise of benefits ... to induce its employees to
21 Heck's Inc., 166 NLRB 186, enfd . sub nom. N.L R.B. v. Gissel Packing
Co., Inc., 395 U.S. 575; Mink-Dayton, Inc., 166 NLRB 604, 612, in which the
court, although remanding the case to the Board for reconsideration in the
light of the Gusel decision, did not question the finding of card majority (416
F. 2d 327 (C.A. 6)), General Stencils, Inc., 178 NLRB No. 18 last paragraph
of section E, 3.
22 Paragraph 13 of the complaint, alleging that the Company, on October
10, "warned and directed its employees to refrain from becoming or remain-
ing members of the Union, and to refrain from giving any assistance or
support to it," was withdrawn by the General Counsel with the statement that
its proof depended upon the testimony by employee Oscar Worley , who was
unavailable.
23 In support of its own contentions , Company counsel also argues that the
two circulars must be read together.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refrain from becoming or remaining members of Local 707
Neitlich, the Company 's treasurer, testified to a contin-
uing effort on the part of the Company to effect a modifica-
tion of the profit-sharing plan if possible and that several
conferences had been held' with counsel in April, May, and
June concerning contacts with the Internal Revenue service
designed to determine the effect on the plan of employee
withdrawals. He also testified that it was on October 9 that
counsel asked him to canvass the employees to determine
how many of them would withdraw from the plan if permit-
ted to do so.
Respondent argues that everything in the circular con-
cerning the organizational activity merely expresses the
Company's permissible opposition to unionism and con-
tends-precisely as does the General Counsel-that the
statement about giving the Company's proposals very soon
is to be construed as relating to the subject of the other
circular, i.e., the amendment of the profit-sharing plan.
Arguments based upon the necessity for construing sep-
arate documents together are more persuasive when the
effort is to determine the aim or motive of technically
trained parties than when the question is whether such doc-
uments tend to interfere with the self-organizational activi-
ties of employees. The employees' dissatisfaction with the
profit-sharing plan was unconcealed and it antedated this
organizational campaign. The circular presenting the em-
ployees with information about negotiations with counsel
and the Internal Revenue Service makes neither representa-
tions nor promises of any kind and simply asks the employ-
ees for a nonbinding statement of their present intention to
withdraw from or remain with the plan. I can find no rea-
son, except their simultaneous distribution, to infer that the
employees would be likely to connect the two circulars as
argued by both the General Counsel and counsel for the
Company. I do not find the mere fact that they were distrib-
uted at the same time sufficient to justify this inference and
I reject the contention. However, even confining each of the
circulars to its own subject, I find that the statement in the
circular dealing with the organizing campaign that the Com-
pany "will be giving you our proposals very soon" is too
vague to justify a finding that it constituted an offer of
benefits interfering with the employees' right of self-organi-
zation or reasonably contributing to their determination to
strike.
Two other incidents prior to the strike are alleged as
interference with employee rights of self-organization and
as contributing to the employees' determination to strike.
Employee Brown testified that, about a week before the
strike, Company President Murray Marlow 25 came to him
at his work station and took him to the receiving room for
a private conversation. Marlow said that what was needed
in the plant was a grievance committee, that " ... one week
after the union is out he would have a grievance committee
and I [Brown] would definitely be on it." Marlow also said,
according to Brown, that he had not drawn any salary, that
he had put a $150,000 second mortgage on his house, and
that if the Union came in, "he would definitely have to close
his doors." Marlow then asked Brown how he was going to
go and Brown said he would go "with the majority.' Brown
24 The Company's advance announcement that it would refuse a union
demand for recognition on the basis of cards is not alleged as a violation.
25 The paragraph of the complaint covering these incidents alleges both the
facts of the incidents and the official position of Marlow . The allegations of
the paragraph were denied in toto but company counsel interposed no objec-
tion to Brown's testimony that Marlow was "vice president or president" of
the Company or to Brown 's testimony concerning statements by Marlow. I
find that Marlow was the Company's president and its agent.
testified that he did not otherwise answer Marlow but re-
turned to his work and told his fellow employees about the
conversation . A few days later, Brown testified , Marlow
passed him at his work station and asked him how the men
`were making out with the union," he answered that he
didn't know , and Marlow passed along.
Marlow did not testify in this case and Brown's testimony
stands uncontradicted. There is nothing inherently improb-
able about Brown's account and I have no reason to dis-
credit his testimony . Accordingly , I find that this incident
occurred as stated : Marlow bo offered benefits to Brown
if he would withhold his support from the Union and threat-
ened reprisal-the closing of the plant-if the employees
should choose the Union as their representative. By
Marlow's statements, therefore , Respondent violated Sec-
tion 8(a)(1) of the Act.
Employee Eldridge Moss testified to a similar incident, at
about the same time, and also with Marlow. Moss testified
that Marlow called him away from his work station into a
storage room, that Marlow told him that the stabilizer de-
partment, where Moss worked , was going to be enlarged as
soon as an expected increase in sales occurred , and that
Moss would benefit directly by becoming foreman of the
department . Marlow also told him , Moss testified, that if the
Union came in, it would cost the Company $27 per man in
benefits and that the Company would go bankrupt.
Marlow did not testify , the testimony of Moss is neither
incredible nor improbable , and I accept it as given. These
statements also combine a promise of benefit with a threat
of reprisal to persuade Moss to withhold his support from
the Union . Accordingly , I find that, by these statements of
Marlow, Respondent violated Section 8(a)(1) of the Act.
While the foregoing incidents undoubtedly contributed
to the employees' determination to strike, their weight was
practically negligible compared with that of the Company's
refusal to recognize the Union . Accordingly, only if this
refusal was , in itself, an unfair labor practice can it be said
that the strike was an unfair labor practice strike at its
inception, as alleged in the complaint.
The current test of unlawfulness in a refusal to bargain
on the basis of card designations begins with the Board's
announced standards, accepted and adopted by the Su-
V
eme Court in Gissel Packing Co., Inc. v . N.L.RB., 395
U.S. 575, in the following language:
Under the Board 's current practice, an employer's
good faith doubt is largely irrelevant , and the key to the
issuance of a bargaining order is the commission of
serious unfair labor practices that interfere with the
election processes and tend to preclude the holding of
a fair election . Thus , an employer can insist that a
union go to an election , regardless of his subjective
motivation , so long as he is not guilty of misconduct;
he need give no afrmative reasons for rejecting a rec-
ognition request , and he can demand an election with
a simple "no comment" to the union.
In the specific cases before it, however, the Court pointed
out that:
Because the employers' refusal to bargain in each of
these cases was accompanied in each instance by
independent unfair labor practices which tend to pre-
clude the holding of a fair election , we need not decide
whether a bargaining order is ever appropriate in cases
where there is no interference with the election pro-
cesses.
This case, therefore , presents at this point the necessity
for determining whether the Company, by its refusal to
recognize the Union on the basis of card authorizations, and
against the background of the conduct described above, so
LOCAL 707, MOTOR FREIGHT DRIVERS
undermined union support as to render a fair election im-
probable. If it did, its refusal violated Section 8(a)(5) of the
Act; if it did not, then it was within its rights in rejecting the
Union's demand on the basis of cards alone.26
From the relatively minor incidents of interference set
forth, involving only 2 of 43 employees, it cannot be said
that, albeit individually violative of Section 8(a)(1) of the
Act, they so seriously undermined employee support for the
Union as to preclude the holding of a fair election 27 The
additional consideration, namely, that because of the elec-
tion held the previous March, no representation election to
test the Union's claim to representation could be conducted
until the following March, is insufficient, in my opinion, to
affect the result.While this barrier undoubtedly results in a
hardship to the Company's employees in their effort to have
the Company recognize the Union as their collective-bar-
gaining representative, the Company did not in any way
contribute to the creation of this condition and I cannot see
it as ustification for depriving the Company of legal rights
to which it is otherwise entitled.
Upon the foregoing facts it follows, and I find, that the
Company did not violate Section 8(a)(1) by its refusal to
recognize the Union prior to the strike and that the strike,
at its inception at least , was an economic strike.
(4) The refusal to reinstate the strikers
As stated above, the Company admits that on both No-
vember 3 and November 6 the strikers made unconditional
applications for reinstatement and that the Company re-
fused to reinstate them. The application made on the 3d was
by means of a telegram from the Union, to which the Com-
pany did not respond, and, on the 6th, by a delegation of
striking employees who went into the plant, saw Neitlich,
and told him that the men wished to return to work. Neitlich
said that he could not give them an answer until he had
spoken with the Company's attorneys.
It is also admitted that the Company on the same dates
refused to reinstate employee Roderick A. Russell, Jr., who
did not join the picket line but refused to cross it, and that
another employee, John Weaver, who was ill when the strike
began on Monday, telephoned in on Thursday, October 30,
to report that he was ready to return to work but was not
permitted to return until November 1128
Neitlich's testimony shows, and company counsel has
repeatedly stated, that the Company's sole reason for re-
fusing to reinstate the employees was and is its contention
that these men, by picketing in violation of Section
26 If the adherence of a majority of its employees to the Union had been
effectively demonstrated to the Company in some other manner , such as by
its inspection and concession of the validity of cards signed by a majority,
or a strike in which a majority of its employees actively participated, the
Company's refusal would not thereafter be in good faith and its conduct
would be violative of Section 8(a)(5). See Arthur F. Derse, Sr., President, and
Wilder Mfg Co., Inc., 185 NLRB No. 76.
27 J. A. Conley Company, 181 NLRB No. 20; Central Soya of Canton, Inc,
180 NLRB No. 86; Blade -Tribune Publishing Company, 180 NLRB No. 56 (in
which suggestions of benefit to 3 of 24 employees , although found violative
of Section 8(a)(l), were held insufficient to preclude the holding of a
meaningful election); Arcoa Corporation, 180 NLRB No. 5; Seymour Trans-
fer, Inc., 179 NLRB No. 5; W. T. Grant Company, 177 NLRB No. 61.
Compare Waters Distributing Company, 182 NLRB No. 141, in which, al-
though the unfair labor practices were based upon the contents of a single
communication , the Board found the threats and promises in it so potent that
an election would be unlikely to reflect an uncoerced employee choice and,
therefore , the issuance of a bargaining order on the basis of a card majority
was appropriate.
28 The complaint alleges that the unlawful delay in permitting Weaver to
return was from November 6 to November 11.
627
8(b)(7)(B) of the Act, lost their status as employees and,
therefore, their right to reinstatement 29
The Company's position, as set forth in its brief, is ex-
pressed somewhat differently: It is that, since the picketing
was in violation of Section 8(b)(7)(B), such activity was the
basis for " . . . the legal advice received by Claremont that
the striking employees were engaging in unprotected and
unlawful conduct, and were subject to discharge."30
This statement, when measured against the facts of this
case and the applicable legal principles, will be found some-
what lacking in precision. Turning first to the law, and on
the basis of the finding made herein that the picketin was
in violation of Section 8(b)(7)(B), the question for deter-
mination is whether the employees' participation in the
commission of that unfair labor practice was conduct mak-
ing them unfit for further employment .31 The cases cited by
the Company, as well as other applicable cases, fall into
three general classes : (i) those involving conduct so det-
rimental to the employer's interest or employee interrela-
tionships that the employer could not be expected to
reinstate those responsible for it and that their discharge
was "for cause";32 (ii) those involving conduct not necessar-
ily violent or antagonistic to the employer's interest but
where the conduct itself or its object violated another Feder-
al statute:33 and (iii) where the conduct or its object was in
conflict with other principles or provisions of the Act itself.
It is in this final group that the guide to decision in this case
must be found.
Prior to the passage of the Taft-Hartley Act, the Board
held, in Thompson Products, Inc., 72 NLRB 886 (vacating 70
NLRB 13), that it would not direct reinstatement or back-
pay for the leaders of a strike to compel recognition of
UAW-CIO at a time when another labor organization was
certified. In reaching this conclusion, it relied upon its earli-
er decision in The American News, supra, which involved a
strike for an illegal object and, explaining its decision, the
Board wrote at 888-889:
the respondent discharged the strikers for reasons
that cannot be disassociated from the strikers' original
objective of compelling the respondent to bargain with
one union at a time when it was under a legal obliga-
tion, pursuant to the Board's certification, to bargain
with another .... "There would be neither moral, legal
nor practical justification for our requiring employers
to respect our certifications if we were unwilling to
respect them ourselves."
39 There is no contention that any employee engaged in any other miscon-
duct or made himself otherwise unsuitable for reinstatement and, except for
employee Russell, discussed below, there is no contention that any employee
had been permanently replaced at the time the request for reinstatement was
made.
30 There was no actual termination of the strike and, on the facts of this
case, it makes no difference whether the Company's position constituted a
discharge of the striking employees or a refusal to reinstate them on their
offer to return to work. (See N.L.R.B v. Rockaway News Supply Company,
Inc., 345 U.S. 71, 75.)
31 This result has been variously expressed in various contexts , in terms of
"loss of status as employees", "forfeiture of right to reinstatement", or "unfit-
ness for further employment" On the facts of this case, any of these terms
can be used.
32 These cases are best typified by Jefferson Standard Broadcasting Compa-
ny, 94 NLRB 1507, affd. sub nom N.L R.B. v. Local Union No 1229, LB E.
W., 346 U.S. 464, in which employees on strike distributed handbills attack-
ing the quality of the employer's product (television broadcasting) without
referring to the pending labor dispute. Also included in this group would be
the many cases involving picket Ime misconduct making it unsafe for the
employer to reinstate the perpetrators thereof.
Southern Steamship Company v. N.L R.B., 316 U.S. 31 (stoppage aboard
ship constituting mutiny); The American News Company, Inc., 55 NLRB 1302
(strike to obtain wage increase prior to statutorily required approval by
National War Labor Board).
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the passage of the Taft-Hartley Act, the
Board, in Perry Norvell Company, 80 NLRB 225, incorporat-
ed a statement of policy on this point and cited in support
thereof the legislative history of the Act, although the case
involved only allegations of violation of Section 8(b)(1)(A)
based upon a particular strike and coercive conduct by
several employees during its continuance. The members of
the committee which fostered the strike were all discharged
but the case did not, as this one does, raise the question of
the propriety of those discharges. Nevertheless, at page 241
of its decision the Board wrote:
In making this finding [that the strike itself did not
violate Section 8(b)(1)(A) of the Act] we do not mean
to imply that the employees who were discharged be-
cause of the strike would be held entitled to rein-
statement and back pay if they should invoke our
jurisdiction under Section 8(a). That question is not
before us and we do not pass upon it. There is an area
of employee activity, not precisely defined, which,
while not constituting unfair labor practices under Sec-
tion 8(b) of the Act, is nevertheless not protected by the
Board when employees seek affirmative relief them-
selves under Section 8(a). This doctrine was evolved by
the courts and the Board under the Wagner Act?'Al-
though some employee conduct previously denominat-
ed as "unprotected' has been made an unfair labor
practice when committed by a labor organization or its
agents (as, for example, a strike in the face of a certifi-
cation of another union), the doctrine that some con-
duct by employees may be unprotected, although not
amounting to unfair labor practices, has retained its
full vigor under the Labor Management Relations Act,
1947?
31 See, for example , Fansteel Metallurgical Corp. v. NL.R.B, 306
U.S. 240 (1939); N.L R.B. v Sands Manufacturing Company, 306 U.S.
332 (1939); Matter of American News Company, 55 N.L.R.B. 1302,
Matter of Scullin Steel Company, 65 N.L R.B. 1294 ; Matter of Joseph
Dyson & Sons, Inc., 72 N.L.R.B 445; Matter of Thompson Products,
Inc, 72 N.L.R.B. 886.
32 See H .R. Rep. No. 510, 80th Cong., 1st Sess., pp. 38-40, 42-43
(1947). A great deal of the confusion in the arguments of the General
Counsel and the Company set forth in their briefs stems from their
failure to distinguish between unprotected activities of employees on
the one hand and unfair labor practices by labor organizations on the
other.
Also subsequent to the passage of the Taft-Hartley Act,
and consistent with its earlier decision in Thompson Prod-
ucts, Inc., supra the Board held, in Mackay Radio and Tel-
egraph Co., Inc., 96 NLRB 740, that employees, who
engaged in a strike to compel the employer to enter into a
contract containing "unlawful union-security proposals,"
had engaged in something more than "unprotected activi-
ties" : that they had engaged in action " ... to coin el the
Respondents to violate a clear congressional mandate, as
expressed in Section 8(a)(3) of the Act" and which, in an
appropriate proceeding, "we would have found to violate
Section 8(b)(2) .. "Accordingly, the Board wrote, at page
743, that:
the employees who partici ated in the unlawful
strike of the kind herein foundpmay not invoke the
protection of the Act because they were denied perma-
nent reinstatement at the end of that strike, even
though the Respondents may have failed to assert the
illegality of the strike as the basis for denying rein-
statement to such strikers.
In this case, the Company position has been, from the
beginning, that reinstatement was being refused because of
the unlawful activities and, moreover, the finding of unlaw-
fulness , only projected in that case, is actually made in this
one. With respect to the unprotected activities in that case
and this one , the only discernible distinction is that the
action taken in Mackay, the strike , was not in itself unlawful
but the object of that action was unlawful , while in this case
the object of the Union's action, recognition , was not un-
lawful but the action taken toward that object , picketing,
was contrary to the "clear congressional mandate" as ex-
pressed in Section 8(b)(7)(B) of the Act . If there is a valid
difference between these two cases , I am unable to see it.
That the foregoing principle stated by the Board in Mack-
ay is firmly embedded in the law seems clear from the
statement of the Supreme Court , in N.L. R.B. v. Drivers
Local 639, Teamsters [Curtis Bros. Inc.], 362 U .S. 274 at
281-282, that:
The Wagner Act conferred upon the Board wide au-
thority to protect strikers from employer retaliation.
However , the Court and the Board fashioned the doc-
trine that the Board should deny reinstatement to strik-
ers who engaged in strikes which were conducted in an
unlawful manner or for an unlawful objective. See for
example Southern S. S. Co . v. N.L.R. B., 316 U.S. 31;
N.L.R.B. v. Fansteel Metallurgical Corp., 306 U .S. 240;
N.L R.B. v. Sands Mg Co ., 306 U . S. 332; and Ameri-
can News Co ., 55 NLRB 1302 . These are the "limita-
tions or qualifications" on the right to strike referred to
in § 13. See S. Rep . No. 105 , 80th Cong ., 1st Sess. 28.
The continued vitality of this principle is indicated by the
Board's statement, in Plastilite Corporation, 153 NLRB 180
at 183, that:
When a "labor dispute" exists, the Act allows employ-
ees to engage in any concerted activity which they de-
cide is appropriate for their mutual aid and protection,
including a strike, unless, unlike the situation here, that
activity is specifically banned by another part of the stat-
ute ... [emphasis supplied.]
The General Counsel's position that the Company's re-
fusal to reinstate the strikers was violative of Section 8(a)(3)
and (1) of the Act is based upon the following contentions:
(i) that the strike was an unfair labor practice strike from its
inception and that the employees "enga ed in a protected
activity (i.e., picketing to protest unfair labor practices)";
(ii) that Section 8(b)(7)(B) is directed against conduct by
labor organizations and that the Company may not utilize
unlawful conduct by the Union to interfere with em loyee
rights; (iii) that Section 8(bX7)(B), unlike Section 8(d), does
not provide that any employee shall "lose his status as an
employee" for conduct violative thereof ; and (iv) that there
are no Board precedents justifying the Company in re-
fusing, on the basis of this activity , to reinstate the affected
employees.
The first contention consists of two separate elements:
that the strike was an unfair labor practice strike and that
the employees' picketing to protest the unfair labor rac-
tices was a protected activity . The first part has been found
unsupported by the facts : On the contrary , it has been
found that, in view of the minor nature of the Company's
interference prior to the strike and the finding that, on those
facts and the law, the Company's refusal to recognize the
Union-the principal cause of the strike-did not constitute
a violation of Section 8(a)(5), and, therefore , it cannot be
said that the strike was an unfair labor practice strike. The
second element of this contention and, also, contentions
numbered (ii) and (iii) are , I am convinced , adequately met
by the rationale and the cases above set forth.34 With respect
34 In view of the express provision in Section 8(d) for loss of employee
status in connection with violations thereof , I have avoided reliance upon any
of the cases arising under that section , although the Board, in one such case,
Fort Smith Chair Company, 143 NLRB 514 at 518, relies upon Mackay Radio
LOCAL 707, MOTOR FREIGHT DRIVERS
to the final contention: it is true that in National Packing
Company, Inc.,35 and Blasingame Well Service 36 the Board
did not resolve the conflict between the opposing principles,
but it refrained from doin so because it found the facts in
each of those cases insufficient to establish a violation of
Section 8(b)(7 (B) and it was unnecessary, therefore, to de-
termine the effect of conduct violative of that section.37
On the basis of the foregoing discussion, I conclude that,
although under the complaint herein only the Respondent
Union can be, and is, found to have violated Section
8(b)(7)(B), the participation of certain of the striking em-
ployees in the picketing upon which that finding is based
constituted both unprotected and unlawful conduct by
them. Accordingly, the Company was justified in its refusal
to reinstate them.
This principle having been established, however, it does
not automatically follow that this record shows justification
for the Company's conduct in refusing to reinstate every
one of the striking employees. There is no contention here,
nor could there be, that there was anything unlawful about
the strike38 Section 8(b)(7)(B) proscribes certain conduct-
picketing-for a specific object-recognition. Accordingly,
only those striking employees who are shown to have par-
ticipated in the picketing thereby lost their right to rein-
statement.
The complaint names 11 employees as having struck and
been refused reinstatement and it alleges that John
Weaver's return to work was unlawfully delayed from No-
vember 6 to 11. During the trial, the complaint was
amended to include the name of Roderick A. Russell, Jr.,
as having struck and been refused reinstatement . Although
the testimony of Neitlich and Wiesenfield clearly indicates
that the Company made no particular effort to determine
which employees participated in the picketing and that the
basis for their discharge was the strike, the record neverthe-
less shows that, with the exception of Russell and Weaver,
all the striking employees picketed.39 As stated above, ar-
ticipation in the picketing proscribed by Section 8(b)(7)(B)
constitutes misconduct justifying the Company in its refusal
of reinstatement and the complaint , insofar as it alleges a
violation by the Company of Section 8(a)(3) and (1) of the
Act in its refusal to reinstate the 11 named employees, must
be dismissed. This being so, there is no basis or need for
finding that the strike was converted into an unfair labor
practice strike.
With respect to Weaver and Russell the situation is differ-
and Telegraph Company, supra
35 147 NLRB 446; remanded 352 F.2d 482 (C.A. 10); on remand 158
NLRB 1680; order set aside 377 F.2d 800 (C.A. 10)
36 174 NLRB No. 166.
37 See also H.B. Zachry Company, 155 NLRB 1222, where it became unnec-
essary to determine whether employees who engaged in a strike allegedly in
violation of Section 8(b)(4)(D) had lost their right to reinstatement because
the elements of a violation of that section were found not to exist in that case
38 It is settled law that a union may demonstrate its majority status other
than by election . (N.L.R.B. v. Gissel Packing Co., Inc, supra, citing United
Mine Workers of America v. Arkansas Oak Flooring Co, 351 U.S 62) and,
since Section 13 of the Act preserves the right to strike unless specifically
restricted (N.L.R.B. v. Drivers, Chauffeurs and Helpers Local 639 [Curtis
Bros., Inc.] 362 U.S. 274), it follows that the prohibition of Section 8(b)(7)(B)
against picketing is a prohibition of that-and nothing more
39 Of the basic 11 strikers, 5 testified that they picketed and there is strong
inferential evidence that the others also participated in the picketing . I regard
as conclusive , however, Schwartz' definite testimony at the injunction hear-
ing that 13 employees picketed . Since Downey, another employee , went out
on strike with the others on the morning of October 27 and picketed for 2
hours before going home and returning to work the following day, Schwartz'
13 was really 12 but, on the basis of his testimony, I find that all of those
who struck on the morning of October 27 participated in the picketing. This
finding does not include Russell or Weaver.
629
ent. Although the Company was justified, as found above,
in refusing to reinstate all the 11 employees who picketed
because the picketing was unprotected and unlawful, the
Company was nevertheless aware that this picketing grew
out of a more basic activit , the strike for recognition, and
this strike was neither unlawful nor unprotected. Accord-
ingly, its discharge of any employee who did not engage in
unprotected activity would constitute an interference with
the employees' right to engage in self-organizational activi-
ties. The rule was clearly stated by the Supreme Court, in
N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21, 22-23, as
follows:
. Section 7 grants employees, inter alia, "the right to
self-organization, to form, to join, or assist labor organ-
izations." Defeat of those rights by employer action
does not necessarily depend- on the existence of an
anti-union bias. Over and again the Board has ruled
that § 8(a)(1) is violated if an employee is discharged
for misconduct arising out of a protected activity, de-
spite the employer's good faith, when it is shown that
the misconduct never occurred. See, e .g., Mid-Conti-
nent Petroleum Corp., 54 NLRB 912, 932-934; Standard
Oil Co., 91 NLRB-783, 790-791; Rubin Bros. Footwear,
Inc., 99 NLRB 610, 611. In sum, § 8(a)(1) is violated if
it is shown that the discharged employee was at the
time engaged in a protected activity, that the employer
knew it was such, that the basis of the discharge was an
alleged act of misconduct in the course of that activity,
and that the employee was not, in fact, guilty of that
misconduct .3
3 The Rubin Bros. case made a qualification as to burden of proof.
Prior thereto the burden was on the employer to prove that the dis-
charged employee was in fact guilty of the misconduct Rubin Bros. said
that "once such an honest belief is established, the General Counsel
must go forward with evidence to prove that the employees did not, in
fact, engage in such misconduct." 99 NLRB at 611.
Although the Company's brief refers to Weaver's absence
as a "sick-out" and thereby clearly indicates a tendency to
regard him as a striker, it nevertheless contends that the
delay in permitting him to return to work was based upon
the necessity for checking his medical certificate to de-
termine whether he had been "absent without leave in viola-
tion of Company policy." Weaver testified, however, that
when he spoke with Wiesenfield by telephone on October
30, Wiesenfield said that the question of his returning to
work was up to the attorneys, that the Company no longer
had control of the jobs. The question concerning the ade-
quacy of the physician's certificate which Weaver presented
concerning his illness was raised subsequently and it was
not until November 10 that Weaver was informed that com-
gany counsel had approved his return to work. At that time
he was told that he could come in on the following day and
he did so. Wiesenfield did not contradict Weaver's testimo-
ny and the only reference to "Company policy" concerning
absences is that in the Company's brief, for which there is
no foundation in the record. Accordingly I find, on the basis
of the testimony adduced by the General Counsel, that the
delay in permitting Weaver to return to work was based
upon the Company s attitude toward the strike and that the
question raised concerning the adequacy of his physician's
certificate was merely a device to temporize while investi-
gating his possible participation. Weaver testified without
contradiction that he did not picket at any time and the
Company's action in returning him to work indicates that
they agreed. I accept Weaver's testimony as true, find that
he did not picket, and conclude that the Company's delay
in permitting him to return to work was based upon its
objection to the strike by a number of its employees. This
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct by the Company constitutes interference violative
of Section 8(aXl) of the Act for which Weaver , if he lost any
pay, must be made whole.
Russell , a part-time evening emplo ee, who , in the course
of his duties on his full-time ob drove a truck ast the
Company's Bethpage plant each day, testified undper ques-
tioning by the General Counsel that, at about 11 a.m. on
October 27 , he passed the Bethpage plant, where he usually
worked about X hours beginnin g at 4:30 p .m., and saw the
pickets on patrol ; that he telephoned in that afternoon to
say that he couldn't report for work that day; and that he
did the same each of the days of that week , each day receiv-
ing approval of his absence . Something more than a week
after the picketing began, he testified , he saw no pickets so
he reported for work but was told he could not return until
Wiesenfield approved . He continued his effort to resume
work and to see Wiesenfield . When he finally saw Wiesen-
field about 2 months later , he testified, Wiesenfield for the
first time referred to the picketing. Russell testified that he
insisted to Wiesenfield that he had not picketed at any time
and that Wiesenfield then stated that he had seen Russell
outside the plant talking to the pickets and goin g to lunch
with the union officials . Russell conceded to Wiesenfield
that he had talked with the pickets and lunched with the
union officials but testified that he told Wiesenfield that he
had done so "to find out the score ." It was at this interview
that Wiesenfield first mentioned that Russell had been re-
placed . Wiesenfield did not contradict Russell and the
Company introduced no other evidence concerning Russell
except Neithch 's similar statement in support of the claim
that he had been replaced.
Even assuming that the Company had a good-faith belief
that Russell participated in the picketing , on the basis of
Russell's positive and credited testimony and the failure of
the Company to adduce any evidence that Russell engaged
in picketing, I find that the General Counsel has adequately
shown that Russell did not picket : I also find that he had
not been replaced and that he was refused reinstatement for
engaging in the strike. On the basis of these facts , I conclude
that the Company 's refusal to reinstate Russel constituted
interference violative of Section 8(axl) of the Act40
6. The effect of the unfair labor practices
upon commerce
The activities of both the Union and the Company, set
forth in sections 3 and 5, above , occurring in connection
with their operations described in section f, above, have a
close , intimate, and substantial relationship to trade , traffic,
and commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free now thereof.
7. The remedy
Having found that both the Union and the Company
have engaged in certain unfair labor practices, I shall rec-
ommend that they cease and desist therefrom and take af-
firmative action designed to effectuate the purposes of the
Act.
Since the Union's picketing of the Company's premises
ceased on November 17, 1969, it must be ordered to refrain
from such picketing for 12 months from that date and it
40 See Jefferson Standard Broadcasting Company, 94 NLRB 1507 at pp.
1512-14, relating to the discharge of employee Flowers; affirmed sub nom.
N.LR.B v. Local 1229, I.B E. W. [Jefferson Standard Broadcasting Company],
346 U.S. 464
must also be ordered to refrain from picketing at the
Company's premises for recognition within 12 months fol-
lowing the date of any other valid election among the
Company's employees in the same unit unless the Union is
certified as the result of such election 41
The Company, having been found herein to have inter-
fered with, restrained, and coerced employees in the exer-
cise of their self-organizational rights by making promises
of benefits and threats of reprisal to coerce employees to
withdraw their support from organizational activities,
should be ordered to cease and desist from such or similar
activities.
Having delayed John Weaver's return to work because of
concerted activity by employees, the Company should make
him whole for any loss of pay caused by such delay, with
interest thereon at the rate of 6 percent per annum in ac-
cordance with the Board's decision in Isis Plumbing & Heat-
ing Co., 138 NLRB 716.
The Company having refused to reinstate Roderick A.
Russell, Jr., upon his unconditional offer to return to work
on November 3, 1969, I shall recommend that it offer him
reinstatement to the same position or to a position substan-
tially equivalent to the one he held immediately prior to the
strike which began October 27, 1969, without loss of seniori-
ty or other rights and privileges, and make him whole for
any loss of earnings since November 3, 1969, to be comput-
ed in accordance with the Board's decision in F. W. Wool-
worth Company, 90 NLRB 289, and with interest thereon at
the rate of 6 percent per annum in accordance with the
Board's decision in Isis Plumbing & Heating Co., supra.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. The Company is an employer enga ed in commerce
within the meaning of Section 2(6) andl) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By picketing at the Company's premises with an object
of forcing or requiring the Company to recognize or bar am
with it as the representative of employees in a unit for which
a valid election had been conducted within 12 months pre-
ceding such picketing, the Union has engaged in an unfair
labor practice within the meaning of Section 8(b)(7)(B) of
the Act.
4. By making offers of benefits and threats of reprisals to
its employees to coerce them into withdrawing support from
the Union, the Company has interfered with, restrained,
and coerced employees within the meaning of Section
8(a)(l) of the Act.
5. By delaying John Weaver in his return to work because
of the concerted activities of its employees, the Company
interfered with, restrained, and coerced employees within
the meaning of Section 8(a)(1) of the Act.
6. By refusing to reinstate Roderick A. Russell, Jr., upon
his unconditional offer to return to work, because of the
concerted activities of its employees, the Company inter-
fered with, restrained, and coerced employees within the
meaning of Section 8(aXl) of the Act.
7. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:4
41 Retail Store Employees' Union Local No 692 (Irvin, Inc.), 134 NLRB
686.
LOCAL 707, MOTOR FREIGHT DRIVERS 631
ORDER
I. Respondent , Local Union No. 707, Highway and Local
Motor Freight Drivers, Dockmen and Helpers , internation-
al Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America, its officers , agents , and representa-
tives, shall:
1. Cease and desist , for a period of 12 months following
November 17, 1969 , and for a period of 12 months following
any valid election among the employees of Claremont Poly-
chemical Corporation , from picketing, or causin to be
picketed , the premises of Claremont Polychemical Corpora-
tion with an object of forcing or requiring Claremont Poly
chemical Corporation to recognize or bargain with it as the
representative of such employees , unless it has been certi-
fied as such representative.
2. Post at its office or meetingplace copies of the attached
notice marked "Appendix A.' 43 Copies of said notice, on
forms provided by the Regional Director for Region 29,
after being duly signed by its representative , shall be posted
by it immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter , in conspicuous
places , including all places where notices to members are
customarily posted . Reasonable steps shall be taken by it to
insure that said notices are not altered, defaced , or covered
by any other material.
3. Notify the Regional Director for Region 29, in writing,
within 20 days from the receipt of this Decision , what steps
it has taken to comply herewith44
II. Respondent , Claremont Polychemical Corporation, its
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Interfering with , restraining , or coercing its employees
in their self-organizational activities by promises of benefits
or threats of reprisal.
(b) Delaying any employee's return to work because of
employees self-organizational activities.
(c) Refusing to reinstate any employee on his uncondi-
tional offer to return because of employees' self-organiza-
tional activities.
(d) In any like or related manner interfering with, re-
straining, or coercin its employees in the exercise of their
rights guaranteed inSection 7 of the National Labor Rela-
tions Act, as amended, except to the extent that such rights
may be affected by an agreement requiring membership in
a labor organization as a condition of employment as au-
thorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Make John Weaver whole for any loss of pay he may
have suffered by the delay in permitting him to return to
work , in the manner set forth above in the section of the
Decision entitled "The Remedy."
(b) Offer to Roderick A. Russell , Jr., immediate and full
reinstatement to his former job as a polisher or, if that job
no longer exists , to a substantially equivalent position, and
make him whole for any loss of earnings he may have suf-
fered by reason of its failure to reinstate him, in the manner
set forth above in the section of the Decision entitled "The
Remedy."
42 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations , and Recommended Order herein shall, as
provided in Section 102 .48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions , and order , and all objections
thereto shall be deemed waived for all purposes.
(c) Notify Roderick A. Russell, Jr., the above-named em-
ployee, if presently serving in the Armed Forces of the
United States, of his right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
Recommended Order.
(e) Post at its places of business in Bethpage and Roslyn,
New York, copies of the attached notice marked "Appendix
B."45 Copies of said notice, on forms provided by the Re-
gional Director for Region 29, after being duly signed by its
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter, in conspicuous places , including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by it to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 29, in writing,
within 20 days from the receipt of this Decision, what steps
it has taken to comply herewith 46
IT IS FURTHER RECOMMENDED that the complaints be dis-
missed as to allegations of unfair labor practices alleged but
not specifically found herein.
43 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
44 In the event that this Recommended Order is adopted by the Board after
exceptions have been filed, notify said Regional Director, in writing, within
20 days from the date of this Order, what steps it has taken to comply
herewith
45 See fn. 43, supra.
46 See In . 44, supra.
APPENDIX A
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial which was held in Brooklyn in December 1969,
and April, May, and June 1970, at which all parties were
represented and afforded an opportunity to present their
evidence and arguments, the National Labor Relations
Board has decided that both Local Union No. 707, High-
way and Local Motor Freight Drivers, Dockmen and Help-
ers, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, and Claremont
Polychemical Corporation have engaged in conduct consti-
tuting unfair labor practices under the National Labor Re-
lations Act, as amended.
This Union intends to abide by this decision and, to
assure all persons that their rights will be respected, we are
posting this notice to assure them that:
WE WILL NOT picket, or cause to be picketed, any plant
of Claremont Polychemical Corporation with an object
of forcing or requiring it to recognize or bargain with
us as the collective-bargaining representative of its em-
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in a production and maintenance unit within
12 months after November 12, 1969, or within 12
months after the holding of a valid election among
those employees , unless we have been certified as such
representative as the result of such election.
LOCAL UNION No 707, HIGHWAY AND
LOCAL MOTOR FREIGHT DRIVERS,
DOCKMEN AND HELPERS , INTERNATION-
AL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Fourth
Floor, 16 Court Street, Brooklyn, New York 112')1, Tele-
phone 212-596-3535.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial which was held in Brooklyn in December 1969,
and April , May, and June , 1970, at which all parties were
represented and afforded an opportunity to present their
evidence and arguments , the National Labor Relations
Board has decided that both Local Union No. 707, High-
way and Local Motor Freight Drivers, Dockmen , and Help
-ers, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and Claremont
Polychemical Corporation have engaged in conduct consti-
tuting unfair labor practices under the National Labor Re-
lations Act, as amended.
This Company intends to abide by this decision and, to
assure our employees that their legal rights are being re-
spected, we are posting this notice to assure them that:
WE WILL NOT offer our employees benefits or threaten
them with reprisals to persuade them not to join or
assist Local Union No. 707, Highway and Local Motor
Freight Drivers, Dockmen, and Helpers, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organ-
ization.
WE WILL NOT delay any employee's return to work or
refuse to reinstate any employee because of self-organi-
zational activities by our employees.
WE WILL NOT in any like or related manner unlawfully
interfere with, restrain, or coerce our employees in their
union or self-organizational activities.
WE WILL make John Weaver whole, with interest, for
any pa he lost by our delay in permitting him to return
to work.
WE WILL offer to Roderick A. Russell, Jr., immediate
and full reinstatement to the same position which he
held prior to October 27, 1969, or, if that position no
longer exists , to a position substantially equivalent
thereto, without prejudice to his seniority and other
rights, and WE WILL pay him, with interest, for all wages
he lost because of our refusal to reinstate him.
All our employees are free to join or assist Local Union
No. 707, Highway and Local Motor Freight Drivers, Dock-
men, and Helpers, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any
other labor organization ; to engage in self-organizational
activities; to bargain collectively through representatives of
their own choosing; to act together for mutual aid or protec-
tion; or to refrain from doing any of these things, except to
the extent that their right to do so may be affected by an
agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8(aX3)
of the Act.
WE WILL notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of the
United States, of the right of full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the Uni-
versal Military Training Act.
CLAREMONT POLYCHEMICAL
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Fourth
Floor, 16 Court Street, Brooklyn, New York 11201, Tele-
phone 212-596-3535.